On 8 April 2026, the Hous­ing De­vel­op­ment Cor­po­ra­tion (HDC) an­nounced its in­ten­tion to award ap­prox­i­mate­ly $3.4 bil­lion in De­sign-Build-Fi­nance (DBF) hous­ing con­tracts across 11 pack­ages. The pub­lic re­sponse was im­me­di­ate. Ques­tions were raised about the ca­pac­i­ty of some in­tend­ed awardees, the ab­sence of es­tab­lished re­gion­al DBF con­trac­tors, and the ar­gu­ment that no pub­lic mon­ey was in­volved be­cause the con­trac­tors were bring­ing their own fi­nanc­ing.

That last point should be dis­posed of first.

No pub­lic mon­ey?

A DBF arrange­ment is a form of Pub­lic-Pri­vate Part­ner­ship (PPP). It can­not be re­moved from pub­lic pro­cure­ment reg­u­la­tion mere­ly be­cause the con­trac­tor pro­vides the fi­nanc­ing. Sec­tion 7(1) of the Pub­lic Pro­cure­ment and Dis­pos­al of Pub­lic Prop­er­ty Act 2015, as amend­ed, states in plain terms that the Act ap­plies to “pub­lic bod­ies and pub­lic-pri­vate part­ner­ship arrange­ments”. The statu­to­ry de­f­i­n­i­tion of a PPP al­so con­tem­plates arrange­ments in which the pri­vate par­ty is com­pen­sat­ed from a pub­lic fund, from charges or fees col­lect­ed from users or from both.

Nor is the ab­sence of an up­front trans­fer of pub­lic mon­ey the same thing as the ab­sence of pub­lic val­ue, pub­lic as­set al­lo­ca­tion or pub­lic risk. PPPs may in­volve pub­lic land, de­vel­op­ment rights, ex­clu­siv­i­ty, user fees, sale pro­ceeds, rev­enue-shar­ing arrange­ments, guar­an­teed de­mand for fu­ture sales, min­i­mum rev­enue un­der­tak­ings, loan guar­an­tees, gov­ern­ment war­ranties, ter­mi­na­tion com­pen­sa­tion, tax con­ces­sions, or oth­er con­tin­gent fis­cal sup­port. If the pri­vate con­trac­tors were tru­ly do­ing every­thing in a trans­ac­tion out­side the pub­lic pro­cure­ment regime, one may fair­ly ask: why was HDC award­ing any­thing at all? Pri­vate fi­nance may change the fund­ing struc­ture. It does not erase the pub­lic se­lec­tion func­tion.

With­out sight of the full in­vi­ta­tion doc­u­ments, it is dif­fi­cult to com­ment re­spon­si­bly on the pre­cise risk to the pub­lic cof­fers. But that is not the cen­tral pur­pose of my writ­ing here. The more im­me­di­ate le­gal ques­tion is what hap­pened af­ter the awards were an­nounced: the OPR’s in­ter­ven­tion, the pub­lic com­plaint, the 11 Ap­pli­ca­tions for Re­view filed by NH In­ter­na­tion­al, and the dis­missal of those Ap­pli­ca­tions, os­ten­si­bly not be­cause the griev­ances were found to be with­out mer­it, but be­cause the hear­ing pan­el held that they were out of time.

Lo­cus

On 14 April 2026, the Of­fice of Pro­cure­ment Reg­u­la­tion di­rect­ed HDC to halt the 11 awards pend­ing a re­view of the pro­cure­ment record un­der sec­tions 14(1)(a), (c) and (d) of the Act. A for­mal com­plaint was then lodged un­der sec­tion 41(2) by a pri­vate cit­i­zen. On April 21 2026, NH In­ter­na­tion­al (Caribbean) Lim­it­ed filed 11 Ap­pli­ca­tions for Re­view, con­tend­ing that it ought to have been in­vit­ed to par­tic­i­pate in the pro­cure­ment and had not been. Three days lat­er, the Hear­ing Pan­el dis­missed all 11 Ap­pli­ca­tions for non-com­pli­ance with sec­tion 50(2)(a) of the Act and Reg­u­la­tion 4(b) of the Chal­lenge Pro­ceed­ings Reg­u­la­tions 2021.

Sec­tion 49(1) gives the right to bring a chal­lenge to “a sup­pli­er or con­trac­tor” who al­leges that a procur­ing en­ti­ty act­ed un­law­ful­ly and that the sup­pli­er or con­trac­tor has suf­fered, or is like­ly to suf­fer, loss or in­jury. The pro­vi­sion does not say that the sup­pli­er must have been in­vit­ed to bid. It re­quires an al­le­ga­tion of un­law­ful pro­cure­ment ac­tion and ac­tu­al or like­ly loss or in­jury. On the face of sec­tion 49(1), NH’s lo­cus is there­fore not the dif­fi­cul­ty. The Or­ders do not ap­pear to de­ny it.

That mat­ters be­cause NH is not an ob­scure or spec­u­la­tive en­trant. On its own pub­lic record, it is among the re­gion’s most es­tab­lished con­struc­tion firms. Found­ed in 1965, it has de­liv­ered more than 100 ma­jor projects across 11 coun­tries, en­gaged in con­tracts cu­mu­la­tive­ly worth bil­lions of TT dol­lars, pi­o­neered DBF con­tract­ing re­gion­al­ly, and been named Con­trac­tor of the Year by the Trinidad and To­ba­go Con­trac­tors As­so­ci­a­tion on eight oc­ca­sions.

That his­to­ry did not en­ti­tle NH to win any pack­age. It did, how­ev­er, mean that if NH was ex­clud­ed from a re­strict­ed or pre-se­lect­ed DBF op­por­tu­ni­ty, the ex­clu­sion re­quired a law­ful, cri­te­ria-based ex­pla­na­tion. Pub­lic bod­ies can­not ar­bi­trar­i­ly, capri­cious­ly or ir­ra­tional­ly fail to in­vite suit­ably qual­i­fied con­trac­tors to par­tic­i­pate in pub­lic con­tract­ing op­por­tu­ni­ties.

In pro­cure­ment terms, qui­et ex­clu­sion from in­vi­ta­tions can be as se­ri­ous as ex­press dis­qual­i­fi­ca­tion. The Act con­tains a for­mal in­el­i­gi­bil­i­ty regime for sup­pli­ers who are not per­mit­ted to par­tic­i­pate in pro­cure­ment pro­ceed­ings. That regime re­quires law­ful grounds, process, pub­li­ca­tion, and an op­por­tu­ni­ty to be heard. A pub­lic body can­not by­pass that ar­chi­tec­ture by main­tain­ing, in ef­fect, a pri­vate in­vi­ta­tion cul­ture in which ca­pa­ble sup­pli­ers are sim­ply not called.

This is why the NH com­plaint mat­ters be­yond NH. It rais­es a larg­er ques­tion: whether pre-se­lec­tion is be­ing used as a law­ful fil­ter­ing mech­a­nism, or whether it can be­come an in­vis­i­ble gate­keep­ing de­vice. At its worst, silent ex­clu­sion be­gins to re­sem­ble not law­ful pre-se­lec­tion, but un­law­ful black­list­ing.

Lim­i­ta­tion

The hard­er is­sue is lim­i­ta­tion.

Sec­tion 50(2)(a) pro­vides that ap­pli­ca­tions for re­view of the terms of so­lic­i­ta­tion, or of de­ci­sions or ac­tions tak­en in pre-qual­i­fi­ca­tion or pre-se­lec­tion pro­ceed­ings, must be made “pri­or to the dead­line for pre­sent­ing sub­mis­sions”. For an in­vit­ed bid­der, that dead­line is known. For a sup­pli­er whose griev­ance is that it was ex­clud­ed from in­vi­ta­tion, the dead­line may be a date it could not rea­son­ably have known ex­ist­ed.

That is the co­nun­drum. How does a con­trac­tor who dis­cov­ers, on­ly up­on pub­li­ca­tion of the No­tice of Award, that it may have been ex­clud­ed from pre-se­lec­tion, chal­lenge that ex­clu­sion be­fore the time for sub­mis­sion of bids? Does the law com­pel the im­pos­si­ble?

There is a lit­er­al case to be made. Pro­cure­ment re­quires cer­tain­ty. Sup­pli­ers may be ex­pect­ed to mon­i­tor pub­lic no­tices, the OPR de­pos­i­to­ry, and cus­tom­ary trade an­nounce­ments. A wider dis­cov­er­abil­i­ty ap­proach may un­set­tle pro­cure­ment time­lines and con­vert stand­still from a dis­ci­pline in­to a dis­cre­tion. For the in­vit­ed sup­pli­er, the lit­er­al read­ing works.

But the lit­er­al read­ing be­gins to fail where the sup­pli­er’s com­plaint is that it was kept out­side the process. Lex non cog­it ad im­pos­si­bil­ia, the law does not com­pel the im­pos­si­ble, is more than a Latin flour­ish. It is a prin­ci­ple of le­gal rea­son. A statute should not light­ly be read to re­quire a per­son to take a step that the al­leged wrong it­self made im­pos­si­ble.

To read sec­tion 50(2)(a) as can­celling the stand­ing that sec­tion 49(1) grants, for the very class of sup­pli­er most acute­ly af­fect­ed by un­law­ful ex­clu­sion, would sub­tract by in­ter­pre­ta­tion what Par­lia­ment did not sub­tract by en­act­ment.

The con­sti­tu­tion­al ques­tion

This is where the is­sue moves be­yond or­di­nary pro­cure­ment pro­ce­dure.

The com­mon law has long re­sist­ed lim­i­ta­tion rules that run be­fore an in­jured per­son could rea­son­ably know of the in­jury. Car­tledge v E Jopling & Sons Ltd is the clas­sic start­ing point. Julien v Evolv­ing Tec­knolo­gies and En­ter­prise De­vel­op­ment Co Ltd con­firms that dis­cov­er­abil­i­ty is alive in Trinidad and To­ba­go where a mat­ter is con­cealed or could not, with rea­son­able dili­gence, have been dis­cov­ered. Those au­thor­i­ties do not me­chan­i­cal­ly de­cide sec­tion 50(2)(a). They re­veal a deep­er prin­ci­ple: time should not de­feat a right be­fore the right can prac­ti­cal­ly be ex­er­cised.

The con­sti­tu­tion­al di­men­sion is sharp­er still. Sec­tion 4(b) of the Con­sti­tu­tion pro­tects equal­i­ty be­fore the law and the pro­tec­tion of the law. Sec­tion 4(d) pro­tects equal­i­ty of treat­ment from any pub­lic au­thor­i­ty in the ex­er­cise of its func­tions. Pro­tec­tion of the law is not sat­is­fied by a rem­e­dy that ex­ists on­ly in form, but ex­pires be­fore the per­son af­fect­ed could rea­son­ably know it was need­ed.

If a sup­pli­er is un­law­ful­ly ex­clud­ed from pre-se­lec­tion, and then told it should have chal­lenged be­fore the dead­line for sub­mis­sions, the wrong and the time-bar be­gin to feed each oth­er. The pub­lic body’s ex­clu­sion keeps the sup­pli­er out­side the process. The same ex­clu­sion then be­comes the rea­son the sup­pli­er is said to be too late. That can­not eas­i­ly be rec­on­ciled with a regime en­act­ed to se­cure fair­ness, trans­paren­cy, ac­count­abil­i­ty and pub­lic con­fi­dence.

This is not the or­di­nary case of a dis­ap­point­ed bid­der ask­ing to re­open a lost com­pe­ti­tion. The al­le­ga­tion is struc­tur­al. It is that the statu­to­ry rem­e­dy be­comes un­avail­able to the very sup­pli­er who says the pub­lic body un­law­ful­ly kept it out­side the gate. Where that hap­pens, the sup­pli­er has not mere­ly missed a dead­line. It has been de­nied any prac­ti­cal op­por­tu­ni­ty to in­voke the pro­tec­tion Par­lia­ment cre­at­ed.

Lord Hoff­mann’s prin­ci­ple of le­gal­i­ty in ex parte Simms gives the in­ter­pre­tive bridge. Fun­da­men­tal rights are not over­rid­den by gen­er­al or am­bigu­ous words. If Par­lia­ment in­tends to pro­duce so se­vere a con­se­quence, it must speak clear­ly. Sec­tion 50(2)(a) con­tains no ex­press lan­guage say­ing that an ex­clud­ed sup­pli­er los­es its statu­to­ry rem­e­dy be­fore it could rea­son­ably know of the ex­clu­sion. Read with sec­tion 49(1), with sec­tion 5 out­lin­ing the Act’s pub­lic-in­ter­est pur­pos­es, and with sec­tions 4(b) and 4(d) of the Con­sti­tu­tion, it should not, in my re­spect­ful view, be giv­en that ef­fect.

NH had no right to win. No con­trac­tor does. But a pub­lic body should not be able to con­trol ac­cess to a mul­ti-bil­lion-dol­lar pub­lic op­por­tu­ni­ty through undis­closed ex­clu­sion, and then re­ly on the con­se­quences of that ex­clu­sion to de­feat re­view.

The HDC mat­ter is there­fore not over. The OPR’s sec­tion 14 re­view re­mains dis­tinct from the dis­missed NH Ap­pli­ca­tions. The sec­tion 41 com­plaint al­so re­mains alive. The writ­ten rea­sons for the dis­missal Or­ders, due be­fore the end of this month, will mat­ter.

But the deep­er is­sue is al­ready vis­i­ble. Pro­cure­ment law was en­act­ed to re­place pri­vate dis­cre­tion with pub­lic dis­ci­pline. A law de­signed to pro­tect fair­ness should not be read to make fair­ness im­pos­si­ble. If sec­tion 50(2)(a) means that an un­law­ful­ly ex­clud­ed sup­pli­er has no prac­ti­cal route to be heard, the prob­lem is not mere­ly one of ac­count­able pro­cure­ment pro­ce­dure. The prob­lem is that the sup­pli­er may have been shut out of the process and then de­nied a rem­e­dy be­cause it was shut out. That makes the con­sti­tu­tion­al ques­tion un­avoid­able: can the right to pro­tec­tion of the law be sat­is­fied where the al­leged wrong that gives rise to the rem­e­dy is al­so used to de­feat it?

Dr Mar­garet Satya Rose is an at­tor­ney-at-law, head of Satya Ju­ris Cham­bers and CEO of PC+, a pro­cure­ment ca­pac­i­ty build­ing firm serv­ing pub­lic of­fi­cers, pub­lic bod­ies and pub­lic sup­pli­ers. Learn more: https://pro­cure­ment­com­pli­an­ce­plus.com