K.T. Engineering Consultants Ltd v Digicel Group Ltd et Al

• Jurisdiction: Caribbean States
• Court: Eastern Caribbean Supreme Court
• Judge: Fitzpatrick
• Judgment Date: 27 May 2024
• Judgment citation (vLex): [2024] ECSC J0527-3
• Docket Number: CLAIM NO. MNIHCV 2020/0015

Between:

[1] K.T. Engineering Consultants Ltd.

Claimant

and

[1] Digicel Group Ltd.

[2] Caribbean Cable Communications trading as Digicel Montserrat Ltd.

[3] Digicel St. Vincent

Defendants

CLAIM NO. MNIHCV 2020/0015

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Appearances:

Ms. Chivone Gerald for the Claimant

Mr. Justin Simon, K.C. for the Defendants

Fitzpatrick [AG.]:

THE COURT CONSIDERED THE FOLLOWING:

1 The parties are engaged in ongoing litigation commenced in 2020 where the Claimant alleges that he entered into a binding agreement to provide engineering and contracting work related to the Defendant's installation of a subsea to land link to provide a fibre optic network for Montserrat. The Defendants deny that any agreement with the Claimant was reached.

2 The trial of this matter lasted less than one day. The Claimant presented one witness and the Defendants two. All three witnesses adopted his/her filed Witness Statement as evidence in chief and each was cross-examined.

Trial Evidence

3 The Claimant is a Montserrat corporation engaged in engineering and infrastructure works and consultancy (“KTEC”). William Keith Thomas (“Thomas”) is the principal of the Claimant.

4 The Defendants are related corporations involved in providing telecommunications and entertainment networks across the Caribbean, Central America and Oceania regions (together “Digicel”).

5 As above noted, Digicel was retained by the Government of Montserrat to install a subsea to land link to provide a fibre optic network for the island. As part of this endeavour, Digicel created a Request for Proposal (“RFP”) for invited contractors to bid for the works therein identified.

6 The following provisions of the RFP bear upon the issues in this case and offer some context for the communications detailed subsequently:

Section 12. Cancellation and Acceptance of Proposals

Digicel, for whatever reason, reserves the right to reject any or all of the Proposals and to cancel the Request for Proposal at any time.

Section 17. Contract Negotiations

After a full and complete evaluation of the Supplier's Proposal, Digicel may decide to enter into negotiations with the Supplier for the purpose of determining the following:

Completeness and inclusiveness of the Proposal

Completeness and inclusiveness of associated costs

Understanding and commitment to the project

Understanding the Supplier's knowledge and understanding of Digicel's requirements.

Section 18. Contract Award

After the negotiation stage, the successful Supplier shall be invited to enter into a Contract Agreement with Digicel.

The Contract Agreement shall incorporate the Contract Documents and the agreed Proposal prices.

The Contract Agreement shall allow the issuing of work at the sole discretion of Digicel.

7 The material communications between the parties were all in writing, namely by email sometimes with attachments, over a period of about one month at the beginning of 2020. The trial evidence was focused on the contents of these written communications given it is the interpretation of the email content that will determine the outcome of this action. The relevant email communications and related chronology are reviewed below.

8 The RFP was sent to KTEC by Digicel through an email from it's Program Manager, Krystle Francis on December 13, 2019.

9 On January 10, 2020, KTEC submitted an initial itemized bid (Bid 1) priced at $1,385,000 (USD) for the RFP scope of work.

10 Digicel, again through its Program Manager, Krystle Francis, emailed KTEC on January 17, 2020 at 9:19 a.m. seeking revised pricing as follows:

Subject: Message regarding event: DIGICEL RFP MONTSERRAT SUBSEA BUILD

Dear Vendor,

Due to the disparity in pricing, we are requesting that all vendors resubmit revised pricing by Tuesday 21st January 2020 at 5pm.

Please note that any additional technical questions should be sent by Monday 20th January 2020 by 4pm.

Once an agreement is reached with a vendor, no additional fees or rates will be considered.

Sincerely,

Krystle

11 In response, on January 21, 2020, KTEC submitted a second itemized bid (Bid 2) with a revised price at $1,399,900 (USD) for the RFP scope of work.

12 KTEC, through Mr. Thomas, emailed Digicel on January 30, 2020 at 12:13 p.m. by way of follow up to the submitted revised proposal as follows:

Subject: RE RFP — Montserrat Subsea Terrestrial Build

Good Day,

In respect to the revised submission made, do you have a tentative date for a response of the bidder selection?

Best regards,

William Keith Thomas

13 Digicel, this time through it's Head of Procurement, Annette Griffiths, responded to KTEC by email dated January 31, 2020 at 2:57 p.m. as follows:

Subject: Digicel Counter offer to KTEC (Montserrat Project)

Dear Mr. Thomas

Firstly let me introduce myself, I am Annette Griffiths, Head of Procurement at Digicel Group. Thank you for your proposal in relation to the subject matter. We sincerely appreciate the effort that you have put in submitting such a comprehensive proposal for Digicel. We have reviewed the proposal in details and are pleased with most aspect of it. At the same time there are some key concerns which will probably delay us in awarding your company the contract. We are given specific budget for this project and was tasked to award the contract to the most competitive bidder.

We see your company with high potential to secure this bid, however your price should be minimum 10% lower at a final price of $ 1.25mil versus US$1.39mil.

We sincerely hope you will consider our counter offer as this will put us one step closer to closing this deal with your company. We do hope to receive your favorable response before close of business Monday February 3 ^rd.

Thanking you in advance.

Best regards,

Annette Griffiths

14 KTEC's preliminary response to Digicel's message was by return email from Mr. Thomas to Ms. Griffiths dated January 31, 2020 at 2:21 p.m. as follows:

Subject: Re: Digicel Counter offer to KTEC (Montserrat Project)

Dear Miss Griffiths

Certainly we are most grateful for the opportunity and would be reviewing the numbers over this weekend. I should not see an issue here but would have a confirmation on or before the business day of Monday February 3rd, 2020.

Best regards

William Keith Thomas

15 KTEC, through Mr. Thomas, forwarded the following correspondence dated February 3, 2020 to Ms. Griffiths:

Dear Miss Griffiths

I must acknowledge our gratitude of having been given the opportunity to bid on this project. Furthermore, it is most humbly to be selected as the preferred bidder for negotiations. Therefore, we are hereby accepting the offer as presented.

Attached is a reconsideration of the rates and amounts equating to a sum of US$1.25M.

N.B: This email was set [sic] since early this morning, please respond ASPA [sic] if you have received.

Best regards

William Keith Thomas

16 A copy of the above correspondence was produced at trial. Although the evidence was not entirely clear, it would appear that this correspondence was sent by email along with KTEC's now third itemized bid with a further revised price of $1,250,000.00 USD.

17 Digicel, through Annette Griffiths, followed up on its January 31 ^st message by email to KTEC dated February 3, 2020 at 2:13 p.m. as follows:

Subject: RE: Digicel Counter offer to KTEC (Montserrat Project)

Dear Mr. Thomas

This consider this mail as a friendly reminder on the below request. Please let us hear from you.

Best regards,

Annette Griffiths

18 KTEC subsequently communicated its response, again through Mr. Thomas, by email dated February 3, 2020 2:14 p.m. providing KTEC's now third itemized bid with the revised price at $1,250,000 (USD) noting that the revised bid had also been uploaded to the Digicel portal:

Subject: Re: Digicel Counter offer to KTEC (Montserrat Project)

Dear Miss

I have also loaded the revised offer into the portal.

Best regards

William Keith Thomas

19 Digicel, again through Annette Griffiths, responded to KTEC by email dated February 3, 2020 at 4:12 p.m. as follows:

Subject: RE: Digicel Counter offer to KTEC (Montserrat Project)

God [sic] day Mr. Thomas

I am confirming receipt of your offer and will be in touch within the earliest possible time with our decision on the matter. Thank you.

Best regards,

Annette Griffiths

20 KTEC messaged Ms. Griffiths, again through Mr. Thomas, by email dated February 5, 2020 at 1:52 p.m. where he stated:

Subject: RE: Digicel Counter offer to KTEC (Montserrat Project)

Dear Griffiths,

I am following up on the status in response to the counter offer that submitted on Monday.

Looking forward to a favourable response.

Best regards

William Keith Thomas

21 The responding communication was Ms. Griffith's email dated February 5, 2020 at 4:23 p.m. to KTEC where she stated:

Subject: RE: Digicel Counter offer to KTEC (Montserrat Project)

Dear Mr. William,

We regret to inform you that we have considered another offer. The project was awarded to an existing business partner who is currently under contract with Digicel working on multiple projects.

Their offer was very attractive, one we could not refused [sic].

Thanks for your participation and we will continue to include your company in our tender process.

Best regards,

Annette Griffiths

22 The final salvo was an email from KTEC through Mr. Thomas to Ms. Griffiths dated February 5, 2020 at 5:50 p.m. presenting KTEC's position as follows:

Subject: [EXTERNAL] Re: Digicel Counter offer to KTEC (Montserrat Project)

Dear Miss Griffiths,

Re: Digicel counter offer to KTEC

Your response indicating that Digicel has considered another offer, came as quite a shock, as based on your email of Friday 31 January 2020, you indicated that Digicel was pleased with the aspects of my proposal, but given your specific budget, you counter offer a reduced price of $1.25mil, which I agreed and accepted...