The appointment of famed architect Rocco Yim Sen-kee, carried out four months earlier before officials made a presentation to the Board of WKCDA on the Palace Museum project, is against the stated ‘criteria for determining when Restricted or Single tendering can be used’, according to the Procurement Procedures of the West Kowloon Cultural District Authority (WKCDA) obtained by FactWire today. Yim was directly appointed to commence the design works for the Palace Museum project, code-named ‘Project P’.
On January 10 at the WKCDA press conference on launch of public consultation on Hong Kong Palace Museum, then Chief Secretary for Administration Carrie Lam Cheng Yuet-ngor admitted to meeting Yim in person in May 2016, stating that ‘inviting Mr. Yim to join the project is my judgement and my decision’, that the appointment by tender ‘meets the procurement policy of the WKCDA’, and that ‘a lot of governments and organizations retains flexibility in their procurement policy to make direct appointments or commissions under special circumstances’.
Yim responded to media enquiries saying that he did not find the appointment ‘unusual’, especially when there would be ‘very good reasons why a direct appointment is necessary’.
‘But when the Chief Secretary approached me in the beginning, it’s really just the preliminary study…so I found [it to be] even more logical that [because] the preliminary study work…has to be done very quickly [and] efficiently, it can be a direct appointment,’ said Yim.
Quoting the ‘Code on Access to Information’ in request for information on January 24, FactWire acquired today at 4pm the ‘Guidelines for Procurement of General Goods and Services’, ‘Guidelines for Procurement of General Goods and Services by Single Sourcing’ and ‘Procurement Procedures for Capital Projects’, involving documents of around 100 pages.
The ‘Procurement Procedures for Capital Projects’ states that the aim is to ‘ensure the procurement activities in respect of the planning, design and construction of the Capital Projects will be performed in a proper and auditable manner’. The procedures also regulated procurements regarding the consultants and feasibility study.
Point 11 of the procedures states that ‘single or restricted tender procedures shall only be initiated with the prior approval of the relevant approving authority. Tenderers shall not be informed that tenders are being invited on a single or restricted basis, and shall be required to submit their tenders in the same manner as open and selective tender procedures. Notice of tender invitation shall be sent by letter to the tenderers.’ This means that Yim’s direct appointment violated the procedures, contrary to what Lam and the WKCDA had emphasized repeatedly.
In response to whether the appointment of Yim without open tender violated the principle of openness and fairness, statements issued by the Chief Secretary of Administration’s Office and the WKCDA on January 10 said that the Board of WKCDA appointed Yim’s company, Rocco Design Architects Limited, to be the design consultant according to procurement procedures. The statements further point out that consultant contracts with a value under HK$5 million and its single tendering arrangements have to be approved by the Chief Executive Officer, Director of Project Control and Executive Director of Finance, whereas the approval from the Board of WKCDA is not required.
The procedures stress that the adoption of single or restricted tendering ‘may be politically sensitive and may arouse public attention’. According to the procedures, the procurement in respect of capital projects with an estimated works contract value of up to HK$10 million or a consultancy services agreement value up to HK$5 million have to be approved by the Chief Executive Officer, Director of Project Control, and Executive Director of Finance;
a consultancy services agreement value of more than HK$5 million and up to HK$50 million or capital projects with an estimated works contract value of more than HK$10 million and up to HK$100 million have to be approved by the Development Committee of the Board of WKCDA; and
consultancy services agreement value of more than HK$50 million or capital projects with an estimated works contract value of more than HK$100 million would have to be approved by the Board of WKCDA.
On January 10, the WKCDA announced the commission fees for Yim to carry out advanced study works for the Palace Museum to be HK$4.5 million. Since the amount is ‘below HK$5 million’, it does not require the approval of the Board of HKCDA. However, Lam and the WKCDA did not mention regulations listing out the circumstances under which single or restricted tendering would be permissible.
Point 6 of the procurement procedures states that ‘Single or Restricted tendering is only used when circumstances do not permit the use of other types of tendering, for example, on grounds of extreme urgency or security, for proprietary products or for reasons of compatibility.’
Point 10 suggests eight criteria for determining when restricted or single tendering can be used, including:
(i) where there is extreme urgency brought about by unforeseeable events and where the delay that would arise as a result of open tendering would have serious and adverse consequence to the Authority;
(ii) where for reasons connected with the protection of copyright or technical reasons, the products or services can only be supplied by a particular supplier and where no reasonable alternative or substitute exists;
(iii) where there is no response to an open or selective tender, or when the tenders submitted have been collusive, or not in conformity with the essential requirements in the tender, or from suppliers who do not comply with the conditions for participation, on condition that the requirements of the initial tender are not substantially modified in the contract as awarded;
(iv) where the equipment or services to be purchased must meet requirements of compatibility or interchangeability with already existing equipment or services;
(v) where it can be demonstrated that “patent” or “proprietary” items are the only items which can meet the specification;
(vi) where services are to be provided by utility companies;
(vii) where maintenance is to be executed on patent or specialized equipment and where the warranty over the equipment gives the supplier of the equipment the exclusive right to carry out the maintenance services; and
(viii) where lease terms require that work must be executed by a particular firm.
None of the above reasons fit the circumstances under which Yim was directly appointed.