SINT MAARTEN (SIMPSON BAY-AIRPORT) – Princess Juliana International Airport Exploitatiemaatschappij N.V. (PJIAE) has reviewed the report of the Ombudsman entitled “Systemic investigation procurement process/ procurement management policy PJIAE NV.” The report has been made publicly available and contains incomplete and inaccurate statements, thus, PJIAE wishes to provide the general public with further background information.
The systemic investigation that was conducted by the Ombudsman originates from a complaint that was filed in 2018 against PJIAE with the Ombudsman by a contractor. The complaint concerned the procurement of a contract by PJIAE. In the past, the contractor in question had executed several contracts for PJIAE. When the contract was tendered by PJIAE in accordance with its procurement policies and procedures – in which the complainant also participated – the contract was awarded to another party.
After being confronted with the complaint, PJIAE informed the Ombudsman that based on Sint Maarten laws, the Ombudsman can only investigate complaints that are filed against (a) administrative authorities of Country Sint Maarten and (b) other administrative bodies that are designated by national ordinance. In the procurement of the contract in question, PJIAE did not act as an administrative authority or body. For that reason, PJIAE concluded that the Ombudsman was not competent to investigate the complaint and PJIAE was not obligated to share its internal confidential documents. It is relevant to note that PJIAE is a government owned entity, but it does not fall under public procurement rules. PJIAE does maintain internal procurement policies and procedures and according to an internal investigation that PJIAE had already conducted into the complaint, it concluded that its policies and procedures were properly followed, and the complaint was unjustified.
Furthermore, as PJIAE is fully committed to maintaining the highest possible standards in the procurement of its contracts and always strives to treat parties equally and fairly, PJIAE informed the Ombudsman that despite the many other pressing post-hurricane matters that it was (and still is) facing, it would spend its valuable time and resources on conducting a second internal investigation into the complaint. Following the completion of the second internal investigation, by different individuals than the first investigation, PJIAE again concluded that its procurement policies and procedures were properly followed and shared this conclusion with the Ombudsman.
PJIAE and the Ombudsman could not agree on whether PJIAE can be subject of complaints, in which the Ombudsman can investigate. When it became clear that the Ombudsman based its position on incorrect legal interpretations and assumptions, PJIAE invited the Ombudsman for a personal meeting with PJIAE’s representatives, whereby they could further expound upon the organization, authorities and activities. The Ombudsman refused to accept the invitation. Instead, it took a one-sided and threatening approach in the matter: either PJIAE had to fully cooperate and share its internal documents, or else the Ombudsman would start a systemic investigation against the Government of Sint Maarten into PJIAE’s procurement procedures.
When the debate on the legal status of PJIAE and the authority of the Ombudsman continued, PJIAE offered to jointly appoint an independent third-party expert at the expense of PJIAE. This independent third-party expert could then render a binding advice to the parties on whether PJIAE can be subject of complaints, that the Ombudsman can investigate. For reasons unknown to PJIAE, the Ombudsman refused to accept this proposal. Instead, the Ombudsman concluded that PJIAE was not cooperating, therefore it closed the complaint procedure and sidelined PJIAE by pursuing this matter via a systemic investigation against the Government of Sint Maarten.
PJIAE respects the office of the Ombudsman as a High Council of State, but it regrets the position and actions taken by the Ombudsman in this matter. The outcome of the complaint procedure and the inaccurate and incomplete report both fail to properly address the Ombudsman’s self-assumed authority. As a result, PJIAE and other government owned entities and foundations over which the Ombudsman assumes authority are left with an undesirable situation where legal uncertainty continues to exist. Even worse, another flawed report on government owned entities that is out in the public domain may leave the unjustified impression that the Government of Sint Maarten and its government owned entities are not transparent, are not properly governed and do not maintain or conduct proper procurement procedures. PJIAE reiterates that it is and remains fully committed to maintaining the highest standards in the procurement of its contracts, the compliance of which is also part of the annual review of its external independent auditor.
PJIAE hereby once more extends an open invitation to the Ombudsman for a constructive joint discussion on how to deal with these types of matters. Hopefully the Ombudsman is now willing to accept this invitation and parties are able to resolve their differences, which ultimately serves all parties involved as well as the general public going forward.