Archive for category Public Procurement Reform
JCC President Afra Raymond interviewed on Heritage Radio 101.7FM by Hans Hanoomansingh to discuss JCC matters such as Public Procurement, Invader’s Bay and G2G Arrangements. 04 December 2013. Audio courtesy Heritage Radio 101.7 FM
- Programme Date: Wednesday, 04 December 2013
- Programme Length: 1:23:27
I closed last week’s article by restating my view that all the ingredients for corruption were present at Invader’s Bay.
What are those ingredients?
Here is my list -
- Extensive public assets coming onto the market, in turbid circumstances. Those assets can include property, concessions, contracts and jobs;
- Questions of access to the gatekeepers – in these scenarios, some people will have unbelievable access to the decision-makers;
- Conflicting and confusing versions of the project or proposal. The confusion is as persistent as it is deliberate, a part of the tangled web.
- Blatant double-standards and lying is the norm in these situations;
- Apart from ceremonial fluff, such as sod-turnings and ribbon-cuttings, there is no intention whatsoever to give any proper public account or statement of intentions. True transparency is evaded like taxes;
- Professional Civil Servants who are unable or unwilling to insist on the maintenance of minimum standards;
Extensive Public Assets
These lands are estimated to be worth in excess of $1.2Bn at today’s priced, that means the unimproved value. Although the lands are reclaimed, a significant amount would have to be spent on infrastructure to make the property ‘shovel-ready’ for development.
As I noted in the first in this series, there were conflicting claims on this aspect, with the selected developers claiming extensive infrastructure expenses as a way to reduce what they would pay for the land. There were no estimates given for the developers’ cost of infrastructure, but I noted that the National Budget for 2014 had specified, at pg 89 of the Public Sector Investment Program, that there would be publicly-funded ‘Infrastructure Development’ at Invader’s Bay.
I have been assisted by some of the professionals in the very Ministry of Planning & Sustainable Development in identifying that item as being a $50M allocation for 2014. The actual works are unspecified, so it is difficult to be certain what is included. It certainly seems a modest sum given the size and peculiar challenges posed by the Invader’s Bay property.
In addition to the obvious public asset of the actual property, readers should note that assets in this context can include concessions. In this context that can mean maritime & docking concessions as well as tax concessions, so we will have to maintain full vigilance to safeguard the public interest.
As a first position, all the details of the overall agreements must be published for public consideration at the earliest opportunity. This is no minor point, since really huge sums of wealth can be transferred from public hands to private interests if proper transparency is not ensured. Just remember that in June this year while the President of the Peoples Republic of China was here there was the signing of a Government to Government Agreement. The JCC has lodged many strong objections to those agreements. How many readers will remember that there was an important agreement signed with respect to the Pitch Lake at that time?
To cite a press report -
…According to a release from Lake Asphalt of Trinidad and Tobago (1978) Ltd, the signing ceremony of a Memorandum of Understanding and a Confidentiality Agreement with Beijing Oriental Yuhong Waterproofing Technology Co Ltd of the People’s Republic of China is scheduled to take place at the Hyatt Regency, Port of Spain…
So, faced with a Freedom of Information Act which ensures disclosure, the new trend is to wrap-up the details in yet another layer of secrecy. We need to be alert to that trend. After all, this is the same Ministry which claims to have legal advice confirming that its actions conform to the Central Tenders Board Act, yet steadfastly refuse to publish that advice.
Access to the gatekeepers
One of the two successful proposers has been the MovieTowne principal, Derek Chin, whose confidence has been striking.
According to Mr. Chin, in an extensive interview -
…Chin has met with the Prime Minister and many government ministers seeking approval for this project.
Before Christmas 2010, he had a meeting with the Transport Minister Jack Warner, Foreign Affairs Minister Suruj Rambachan, and other ministers, at the Prime Minister’s Office. They all supported his plans. “I have been lobbying the Government for a year now, even before the elections. I sent in the preliminary sketches about the concept; I met 19 Cabinet ministers over the last six months. The next minister I am meeting is Bhoe Tewarie, Minister of Planning. He wants to see me. I also met with Jearlean John, Udecott chairman. She also loves it, but that was three to four months ago…
That interview was given in early July 2011, which is over one month before the Request for Proposals was published by the Ministry of Planning & Sustainable Development at the end of August. I tell you.
Conflicting and confusing versions
So, to return to the legal opinions, we have this swirling set of stories.
To date, Minister Tewarie has insisted that the project has been removed from UDeCoTT’s portfolio and placed within the Ministry of Planning. He claims that Cabinet approved this in 2011 and also insists that there is no tender process at Invader’s Bay. Of course it is impossible for the Ministry to proceed to invite tenders for anything without following the Central Tenders Board Act.
The first legal advice I saw was clear that there is indeed a tender process at work here and that the CTB Act ought to have been followed. Obviously, that conclusion did not ‘fit the script’, so an escape hatch had to be fashioned. Shortly thereafter another opinion was submitted by Sir Fenton Ramsahoye SC, on an entirely different set of assumptions which made UDeCoTT the central enabling agency in the entire scheme.
The approach endorsed by the Ramsahoye opinion flatly contradicts the version being advanced by Minister Tewarie.
That is the deep, intentional confusion being encouraged by public officials in this matter.
Blatant double-standards and lying
So, let us start with the role of the Ministry of Planning & Sustainable Development on the Invader’s Bay project. How does that Ministry reconcile its active role in seeking public views on the King’s Wharf project in San Fernando with its silence on Invader’s Bay in POS?
These are blatant double-standards of the worst kind. One can scarcely believe that there are professional civil servants who could condone this reckless and underhanded approach to national development. But there we have it.
When is the Ministry of Planning & Sustainable Development going to host a public consultation on Invader’s Bay? That is now an inescapable requirement. Sooner rather than later.
But that is not all. No, not at all.
This administration campaigned on the findings of the Uff Enquiry and made several public promises to implement the 91 recommendations of the Uff Report. Such was the importance of the matter in the political agenda that it formed the first item of the very first post-Cabinet Press Briefing of the Peoples Partnership administration on 1st July 2010. That is a broken promise, since those Uff recommendations have not been adopted and the JCC’s many attempts to offer our assistance to achieve that have all been rejected.
The 17th recommendation of the Uff Report is -
- User groups and other interest groups should be properly consulted on decisions regarding public building projects, to ensure that relevant views can be expressed at the appropriate time and taken into account before decisions are made…
There has been no consultation at all on the Invader’s Bay proposals. Quite frankly, apart from rumours and conflicting press reports, I do not really know exactly what is going to be built or where or even when.
According to the iconic American jurist Louis Brandeis, speaking on eradicating corruption -
‘Sunlight is the best Disinfectant’
Since my previous article on this controversial proposal, we have seen that certain legal advice reportedly considered by the government has been featured in another newspaper. If that is the advice the State is relying upon in advancing their Invader’s Bay proposals, we are seeing a large-scale act of intentional illegality and a worrying return to the ‘bad-old-days‘.
My main concerns are -
Compare the lack of consultation at Invader’s Bay with what happens elsewhere. In particular, the large waterfront lands near the city centre of San Fernando at King’s Wharf, which has been the subject of ongoing public consultations over the years. The press reports that various design and redevelopment concepts were presented to and discussed with a widely-based audience.
Whatever the criticisms one might make of the King’s Wharf proposals, it is undeniable that views have been sought from the public/stakeholders and various proposals have been made for consideration.
The JCC and its Kindred Associations in Civil Society met with Ministers Tewarie and Cadiz on 26 September 2011 to express our serious concerns. Yet, when Minister Tewarie was challenged by the JCC and others as to the complete failure to consult with the public, the only example of consultation he could cite was the very meeting we had insisted on, which took place after publication of the Ministry’s Request for Proposals (RFP) and just about one week before the closing-date for proposals.
This Minister obviously does not consider public consultation to be a serious element in real development, notwithstanding the lyrics about innovation, planning and, of course, Sustainability and the Cultural Sector. Just consider the way in which East Port-of-Spain is being discussed within that same Ministry. The prospects for sustainable economic development of East POS must be linked with the Invader’s Bay lands, there is no doubt about that. What is more, to carry-on as though the two parts of the capital can enjoy prosperity in isolation from each other is to trade in dangerous nonsense. When criticising the large-scale physical development plans of the last administration, ‘dangerous nonsense’ is exactly what I had accused them of dealing in.
Public Administration must be consistent, reasonable and transparent if the public is to be properly-served. To do otherwise is to encourage disorder and a growing sense that merit is of little value. The decisive thing has become ‘Who know you’.
We need to be informed now what planning permissions or environmental approvals have been granted on Invader’s Bay and on what terms.
The Legal advice
I have seen the two legal documents reported on in another newspaper and have to say that those are remarkable documents.
A critical undisputed point, is that the evaluation rules – the “Invader’s Bay Development Matrix and Criteria Description” – were only published after the closing-date. The JCC made that allegation in its letter of 14 December 2011 and that was confirmed by Minister Tewarie in his Senate contribution on 28 February 2012. That is a fatal concession which makes the entire process voidable and therefore illegal, since the proposers would have been unfairly treated.
Note carefully that in writing to seek legal advice in response to that challenge of December 2011, the fact that the tender rules were published ex post facto does not seem to have been the subject of a query as to its legal effect.
In one of the legal documents I saw, the penultimate para is chilling in its directness -
“…A simple answer to Dr Armstrong’s question on whether the RFP conforms to the (Central) Tenders Board Act is that it does. In reality, the entire tender process was not brought under the CTB Act and the matrix and criteria were forwarded to the tenderers AFTER they submitted their initial proposals to the MoPE…”
The ‘simple answer‘, which is what Senator Armstrong got from Minister Tewarie, is that the Central Tenders’ Board Act had been conformed with. The next sentence is where we enter the other place…let us deconstruct it -
Meaning of the phrase
|‘In reality‘||The prior sentence is the official version we are going to tell Senator Armstrong, but here is what really happened.|
|“…the entire tender process…”||Minister Tewarie has consistently held that there was no tender process, this is the State’s senior legal adviser calling that process by its correct title, two weeks before his statement in the Senate.|
|…“the entire tender process was not brought under the CTB Act…”||The tender process was required to be brought under the CTB Act, since it was being done via a Ministry…but that did not happen.|
|“…the matrix and criteria were forwarded to the tenderers AFTER they submitted their initial proposals to the MoPE…”||The State’s senior legal adviser is confirming here that the elementary good practice rules of tendering have been violated, rendering the entire process voidable.|
There are two clear findings of illegality in that single paragraph by the State’s senior legal adviser. Yet a ‘simple answer‘, which was ultimately deceptive, was suggested for Senator Armstrong.
The advice which featured in the press was from Sir Fenton Ramsahoye SC, seemingly obtained after the initial opinion just discussed.
The Ramsahoye opinion was reported to have ‘given Bhoe a green light‘ and so on, but I have serious doubts on that.
- Firstly, if there had been clear-cut, solid advice which would have exonerated its actions, the government would have published that so as to silence its critics.
- Secondly, having read it myself, their game is a lot clearer.
Ramsahoye’s mind seems to have been directed to the prospect of UDECOTT being granted a head-lease of the entire Invader’s Bay property and then granting sub-leases to the developers selected by the Ministry of Planning. Those developers would then carry out the proposed development/s.
If that is the way this is proceeding, then there are two serious issues arising on UDeCoTT’s involvement -
- The Switch – While it is true that UDeCOTT can lawfully grant the subleases and operate outside the CTB Act, the burning question has to be when was this decision taken to give UDeCoTT that role? Minister Tewarie has been adamant, since November 2011, that Cabinet took a decision that the Invader’s Bay project be removed from UDeCoTT’s portfolio to be placed within his Ministry. When did that purported switch back to UDeCoTT take place? Has Cabinet actually approved such a move? The first advice looked at the development as it had proceeded and made the conclusions which I criticised above. The second advice, contemplated a procedure which had been vigorously resisted by the responsible Minister.
- The role of the Board – One of the most vexatious issues to be probed in the Uff Enquiry is the question of to what extent can Cabinet instruct a State Board. That issue of undue Cabinet influence was also a large contention during the Bernard Enquiry into the Piarco Airport scandal. Uff concluded, at para 8, that the scope of Ministers’ power to give instructions ought to be clarified. There are several significant challenges if one accepts the formulation put onto the Invader’s Bay process in Ramsahoye’s opinion. Cabinet would have to instruct that UDeCoTT implement decisions taken by the Ministry of Planning etc. As we have seen and as the legal advice has clarified, those decisions emerged from unlawful processes. Is UDeCoTT obliged to follow unlawful instructions? In the event of litigation, which is increasingly likely, will the members of UDeCoTT’s Board be indemnified by the State for their unlawful acts? If that were the case, it would be repugnant, with deep echoes of the two earlier large-scale episodes of wrongdoing at Piarco Airport and UDeCoTT projects as cited above.
I stated earlier that this Invader’s Bay matter had all the ingredients for corruption. I stand by those views.
Having written four critical articles consequent on the Appeal Court’s 27th June ruling and having been preceded by two leading commentators — Andre Bagoo & Anthony Wilson — I was intrigued by this Public Notice published at p. 49 of the Sunday Express of 6 October 2013.
It does not mention any particular articles and purports to clarify the ruling. I will be continuing this examination in my reply.
Invader’s Bay has re-emerged from the shadows via PNM Senator Faris Al-Rawi’s budget contribution on Monday 23 September 2013 (pp. 168-175). The twists and turns in this controversial proposed scheme are detailed at JCC’s webpage.
Invader’s Bay is a 70-acre parcel of reclaimed State land off the Audrey Jeffers Highway – just south of PriceSmart & MovieTowne – in the western part of Port-of-Spain. Its value was estimated by the State in 2011 to be in excess of $1.2Bn, so these are prime development lands, possessing these attributes -
- Water, Electricity and all urban services are readily available;
- Flat/gently-sloping terrain;
- Direct access to Audrey Jeffers Highway;
- Waterfront location.
Before proceeding to the latest revelations, it is important to restate the main objections raised by the JCC and others with respect to this proposed development -
- The Request for Proposals (RFP) was published by the Ministry of Planning in August 2011 seeking Design-Build proposals for the development of these lands and specifying an entirely inadequate 6 weeks for submissions;
- There has been no public consultation at all, so the public has not been involved in this, the largest proposed development in our capital in living memory;
- The RFP was silent as to the other three, extant strategic plans for the POS area, all paid for with Public Money. Given that the RFP was published by the Ministry of Planning, that is a tragic irony, to say the least;
- EIA – The RFP is silent as to the requirement for an Environmental Impact Assessment in a development of this scale;
- The proposals were to be evaluated against the “Invader’s Bay Development Matrix and Criteria Description”, which was only published after the closing-date for submissions. That is a clear breach of proper tender procedure, which renders the entire process voidable and therefore illegal.
I am fully in support of a vigorous and conscientious Integrity Commission (IC). I do not want to see the IC abolished or sidelined. The IC must realign its limited resources to ensure a decisive impact on the conduct of Public Officials. The proposals contained in its 2012 Annual Report show clearly that the Gordon Commission has started to seriously grapple with that challenge.
The derailment of the IC between 2004 and 2009 is a clear example of what can happen to an Independent Commission if we do not maintain vigilant oversight.
This matter is of the greatest interest for those of us campaigning for Public Procurement reform so as to get effective control over all transactions in Public Money. The arrangements we are proposing include new Independent Commissions/Officeholders. It is therefore critical that we learn the lessons from this debacle so as to safeguard the bodies we are proposing. The stakes are very high for our nation’s Integrity Framework, which must be strengthened, with swifter resolution of allegations.
To continue in the current manner is to drag the system into further disrepute, encourage even more bold-faced thieves, more reckless public officials and we can expect complete loss of the residual respect for the post-independence civilization we have tried to grow. That would be an ugly and violent future for our society, so this episode requires stern and conscientious examination. Read the rest of this entry »
The previous column discussed the Appeal Court judgment in #30 of 2008, in which both TSTT and the Integrity Commission sought to challenge the High Court ruling in #1735 of 2005. That High Court ruling found that the phrase contained at para 9 of the Schedule to the Integrity in Public Life Act (IPLA) was to be taken ‘as read’ to define those people who are subject to its provisions -
- “Members of the Boards of all Statutory Bodies and State Enterprises including those bodies in which the State has a controlling interest.”
The Appeal Court – comprising CJ Archie, together with Mendonca JA and Smith JA – ruled that -
- TSTT is not a State Enterprise. The members of its Board are not subject to the Integrity Provisions.
- It is only the members of the Boards of those Statutory Bodies which exercise public functions that are subject to the jurisdiction of the Commission.“ Read the rest of this entry »
On 27th June the Appeal Court ruled that -
- TSTT is not a State Enterprise. The members of its Board are not subject to the Integrity Provisions.
- It is only the members of the Boards of those Statutory Bodies which exercise public functions that are subject to the jurisdiction of the (Integrity) Commission.
Telecommunications Company of Trinidad & Tobago (TSTT) is a company established between the T&T State and the British-based multinational, Cable & Wireless. C&W holds 49% of the shares in TSTT, while the State holds about 42% of the shares together with the right to nominate 5 of its 9 Directors.
That unanimous ruling has serious consequences for the viability of our nation’s integrity framework.
The intended purpose of that framework is to ensure a satisfactory level of transparency and accountability in the way Public Money is transacted and Public Functions are discharged. There is still a strong case for this Integrity Framework as a necessary ingredient in the Good Governance of our nation. The Integrity Framework includes the Auditor General; the Integrity Commission; the Investments Division of the Ministry of Finance and the two Parliamentary Accounts Enterprises Committees. Ours is the most vibrant Caribbean economy and the State is clearly the largest player, so the proper management of that sector is critical. Given the continuing rise in the waste and theft of Public Money, there will always be a need for an improved, more effective Integrity Framework to oversee these huge, controversial operations.
Read the rest of this entry »
Afra Raymond chats on the show ’Forward Thinkers‘ with David Walker on More 104.7 FM about State Enterprises. 15 August 2013. Audio courtesy More 104.7 FM
- Programme Date: Thursday 15th August 2013
- Programme Length: 0:54:33
This is the interview on Caribbean Corruption for ‘Time to Face the Facts‘ which was broadcast out of Barbados-based Caribbean Media Corporation on Sunday 26th May 2013.
The audience was regional via cable and global via their Facebook page. The interviewer is Jerry George and the format was a live call-in. Video courtesy Jerry George