Charting our losses: ‘A picture is worth a thousand words’

The last four articles in this series have focused on what I call ‘two sides of the same coin’ – the coin being the large-scale and improper use of Public Money.

I examined the THA/BOLT office project called MILSHIRV being undertaken with the Rahael group and the Calcutta Settlement land scheme in which the HDC acquired developed lands at several times the proper price the State could have paid.

Throughout this type of critique one has to strive for effective balance and fundamental integrity.  The extent of the waste and/or theft is never easy to pinpoint when one is working from outside and relying solely on published documents, but my best efforts to establish those facts is what is presented.  Of course it is impossible to say for sure that any amount of money was stolen in a particular project, hence the phrase ‘wasted or stolen’.

Objectively, it does not matter whether the money is wasted or stolen, if it is ultimately unavailable for the benefit of the Public.  Once spent, that Public Money is gone forever, which is why Value for Money is of such importance in any proper Public Procurement system.

Subjectively, however, the errors of inexperience or poor process must be differentiated from an active conspiracy to defraud.  Although the objective measure of loss might be identical in terms of the dollar-amount, there are different long-term consequences.  Innocent errors and miscalculations can be rectified over time by ongoing review processes.  Deliberate conspiracies to defraud require concerted and well-grounded attacks in order to be eliminated.  What is worse about the deliberate conspiracies is that they affect the very atmosphere in which public business is conducted.

We end up with a situation where it pays to pay a bribe and the decision not to pay is to suffer delay.

That is why we are where we are today.  Simple so.

One of the important lessons emerging from the Wall St disaster is that the variety of financial regulators with their varying rules and experiences allowed financial players to engage in ‘Regulatory Arbitrage’. That was  the scenario in which financial players shopped for pliable or suitable regulators within which to channel their products, resulting in the unprecedented financial disaster we are all living through.

Here in T&T we have seen a similar pattern in our financial markets, but the point being made here is that it has also emerged in the Public Procurement arena, with TIDCO paving roads; the rising profile of State-owned entities which were deliberately excluded from the formal procurement controls; those same companies breaking their own rules and so on. That is the emergence of a toxic kind of ‘Procurement Arbitrage’, which is the reason why we must have over-arching regulations to control all transactions in Public Money.

So, there are two types of losses being charted here –

1. Firstly, inexperienced officials or poor processes can approve wasteful uses of Public Money through sheer ignorance.
2. Secondly, there is deliberate conspiracy to defraud the Treasury of our precious Public Money.

Only a Court can establish whether the lost Public Money was wasted or stolen, so I have ventured no opinion as to which is which. Readers can reach their own conclusions.

These charts illustrate the extent of the waste or theft of Public Money in the THA/BOLT and Calcutta Settlement projects.

‘A good example is worth a thousand words‘

THA/BOLT – MILSHIRV Project

 

Click on the charts above to see full size version

---

Calcutta Settlement Land sale – Eden Gardens

 

Click on the charts above to see full size version

Calcutta Settlement review

The simple, inescapable fact is that the State could have lawfully acquired the ‘Eden Gardens’ property for less than $40M.  The HDC paid $175M in November 2012 to Point Lisas Park Ltd (PLP) for that property, which is the reason I am calling this an improper use of Public Money.

Despite having available the advice of the Commissioner of State Lands, the Commissioner of Valuations and various attorneys at HDC and so on, the Cabinet approved this transaction.  This Cabinet, with two Senior Counsel at its head and several other seasoned legal advisers, appears to have been unaware of, or intentionally ignoring, the legal safeguards.

Some readers may be surprised at those assertions, so here are my reasons for making such.

The last two articles examined the steps leading to the HDC’s purchase of land at ‘Eden Gardens’ in Calcutta Settlement.  In my opinion that transaction, as well as the one which preceded it, are both highly improper and very probably unlawful.  The HDC purchase must be reversed and the responsible parties investigated/prosecuted as required by our laws.

This ‘Eden Gardens’ episode is an object lesson in what can go wrong when elementary policy is set aside for stated reasons of expediency.  Apart from the lack of any Needs Assessment, the unclear role of the Commissioner of State Lands is a source of serious concern.  That Commissioner’s role is to advise the State on the strategic implications of its land policies and transactions, so this is a straight example of a case which required a solid input from that critical State Officer.

So, what should have happened?  How would a proposal like the ‘Eden Gardens’ one have been handled if the various parts of the system were functioning properly?

When parties are in commercial negotiations, there is always a Plan ‘B’, to be adopted in case the main plan goes awry.  Each side has a different Plan ‘B’, since they have different interests.

What was Point Lisas Park’s Plan ‘B’ in case their negotiations with the State were unsuccessful?  While we can never know for sure, PLP being a private company, the fact that those lots were widely offered at $400,000 can allow us to form a view as to the benchmark they were likely using.

The State’s Plan ‘B’ is far simpler to establish, since there exists the legal power to compulsorily acquire private property for a public purpose.  That was the third unique facility enjoyed by the State as set out in the previous article.

In the case of a landowner making unreasonable demands, the State has the lawful option of compulsorily acquiring the property.

The Land Acquisition Act 1994 (LAA) establishes the right of the State to compulsorily acquire private property for a public purpose.  At S.12, the LAA specifies the rules of assessment used to arrive at the sum offered to the owners of private property interests being acquired.

S.12 (4) states –

“…(4) In making an assessment under this section, the Judge is entitled to be furnished with and to consider all returns and assessments of capital value for taxation made or acquiesced in by the claimant and such other returns and assessments as he may require…”

The point in this case being that, having registered a purchase at $5M in February 2010, PLP would have been unable to legally resist a compulsory purchase which adopted that price as its basis.  Even if the State, in recognition of the roughly $29M spent by PLP on building the infrastructure for ‘Eden Gardens’, were to add that sum, the final offer would only be about $34M.

Those provisions at S.12 (4) of the LAA are a critical safeguard against persons who might seek to under-declare their properties to evade taxes, then seek to make exorbitant claims if the State seeks to acquire compulsorily.  S.12 (4) prevents the State from falling victim to any such games, it is a critical safety-valve to protect our Treasury from those who seek to pay as little as possible when taxes are due, but boldly make huge claims from the Treasury when seeking to sell.

That is why I am calling for this matter to be swiftly investigated and the responsible parties prosecuted to the full extent of the law.

This was in reality a potent dilemma for PLP, in that if they were served with a proper compulsory purchase notice, they would have either had to stick with the $5M figure as a 2010 baseline, or reject that deed and incur the strong penalties at S.84 of the Conveyancing and Law of Property Act.

One of the three deeds executed on Wednesday 3 February 2010 recorded the purchase of ‘Eden Gardens’ for $5M, which is a massive understatement of consideration.  The true market value of that undeveloped property at that date would have been of the order of $50M, so the loss of Stamp Duty to the Board of Inland Revenue would have been in excess of $3.0M.  The underpayment of Stamp Duty is tantamount to a defect in title of a property.  Are we witness to the State making a massive over-payment for marginal lands with defective title?

Did the Cabinet and the HDC receive the proper advice from the Commissioner of State Lands and the Commissioner of Valuations, as well as the other legal advisers?  If yes, that advice was plainly not followed, so in that case the question would have to be ‘What caused the Cabinet and the HDC to abandon that sound advice?‘

If the true situation is that the proper advice was not provided, we need to know why.  If the advice was not sought, then we need to know why.  If the advice was sought, but not provided, those advisers need to be rusticated so that our processes are protected from more of this nonsense.

The State has an overriding duty to comply with the law and be exemplary in its conduct.  That is not negotiable, if we are to build a society which is orderly, progressive and just.

Episodes such as the ‘Eden Gardens’ sale and the THA/BOLT deal continue the erosion of Public Trust and the loss of that intangible, almost-forgotten, source of ‘soft power’, the Benefit of the Doubt.

This Prime Minister has made repeated statements that any evidence of wrongdoing will be investigated, so that the offenders can be prosecuted according to law.  These three articles have detailed the evidence and breaches of sound public policy, so it is now over to the authorities.

The ‘Eden Gardens’ transaction is a prime example of a large-scale economic crime against the State and the interests of its citizens.

Again, I ask – ‘Who were the beneficiaries?‘

The final point here is that the parties to the PLP purchase and improvement of ‘Eden Gardens’ are now in litigation, with the contractors – SIS Ltd. – suing Point Lisas Park Limited for various monies and demanding an account of the $175M.  Case CV 2012 – 5068, so we have interesting times ahead.

AUDIO: The John Wayne Show Interview – 30 June 2012

Afra Raymond chats in ‘The Barbershop‘ with John Wayne Benoit on i95.5FM about the CL Financial bailout and Public Procurement issues and other topics. 30 June 2012. Audio courtesy i95.5FM

• Programme Date: Saturday, 30th June 2012
• Programme Length: 0:49:03 + 0:35:47

Part 1:

Part 2:

---

VIDEO: Early Morning Interview – 4 May 2012

JCC President Afra Raymond appeared on Early Morning with Hema Ramkissoon to discuss ‘Government fails to deliver?’; a question on the minds of the construction industry. 04 May 2012. Video courtesy CNC3

• Programme Air Date: 4 May 2012
• Programme Length: 0:16:18

Early Morning with Hema Ramkisoon 4 May 2012

►

VIDEO: JCC Press Conference – 02 May 2012

The JCC hosted a Press Conference recently to discuss issues in the country in the construction industry. Afra Raymond’s contribution to the press conference is here. 02 May 2012. Video courtesy JCC

• Programme Air Date: 2 May 2012
• Programme Length: 0:13:33

JCC Press Conference 2 May 2012

►

VIDEO: Early Morning Interview – 10 April 2012

On Tuesday 10 April 2012, JCC President Afra Raymond appeared on CNC3 with Hema Ramkissoon and UWI-based Political Scientist Dr. Hamid Ghany to discuss ‘Governance and Government’.

• Programme Air Date: 10 April 2012
• Programme Length: 0:33:02

VIDEO: POS Rotary Luncheon Speech – 24 April 2012

On Tuesday 24 April 2012, JCC President Afra Raymond addressed the POS Rotary Club at their luncheon on ‘The Imperative of Public Procurement – The Government to Government Arrangements‘ – the Power Point presentation is shown here.

• Programme Air Date: 24 April 2012
• Programme Length: 0:32:36

VIDEO: First Up Interview – 6 March 2012

JCC President Afra Raymond speaks on Procurement revelations in the Parliamentary debate on No-Confidence in the Prime Minister on First Up with Paul Richards and Jessie-May Ventour.

• Programme Air Date: 6 March 2012
• Programme Length: 0:26:32

First Up Interview: 6 March 2012

►

Property Matters – Only a matter of time

The way the Ministry of Planning & the Economy (MPE) is persisting in their course of action on the Invader’s Bay development is perturbing in terms of the long term consequences of short-term decision-making.

At Section 2.0 of the Request for Proposals (RFP) for Invader’s Bay we read

…For Trinidad and Tobago this is a “major waterfront transformation” along the line of other signature waterfront developments such as Darling Habour (sic) in Sydney, Baltimore Inner Habour (sic), the Habour-front (sic) in Toronto, London Docklands and Teleport City in Tokyo. Although the genesis of the projects may vary, the result has generally been bold and dramatic. With the change in the manner in which ports operate and cargo is transported, waterfront property is now more valuable for its residential, retail and recreational function than simply for port activity with heavy industry, docks and fenced off warehouses, as is the case currently in Port of Spain…

We are being asked to consider the Invader’s Bay initiative ‘along the line’ of other leading international examples, which in itself is a good place to proceed from.  The reality is that those developments cited by the MPE all took decades to conceive and what is more, the authors of the RFP know that.  Yet we are also being asked to believe that a workable concept/s could be devised for Invader’s Bay in an RFP which is silent on the current strategic plans for the capital and only gives proposers 6 weeks to prepare.

Of course the lack of consultation will severely limit the participation of many important developers, not to mention the public.

The point is that in all those cities cited by the RFP, there is a serious commitment to consultation, which means that those large-scale transformations took considerable time to conceptualise.

In the city of New York, for example, there has been a long-standing commitment to community-based development.  Check this 6 October webcast from The New School – the introduction is instructive -

For decades, deliberations over land use in New York City have included developers, community boards, elected officials, the Department of City Planning and other city agencies. Do the people who live and work in city neighborhoods have a sufficient voice? Do residents improve the process, or impede progress? Who is best positioned to determine a neighborhood’s needs, and what are the best structures for public participation? New York has long been a leader in community-based development but as the city recovers from the Great Recession, what does the future hold?

And that is just one reference, readers can ‘Google’ to find the many other supportive examples.  In the very RFP, as well as in the recent budget, there is a clear commitment to consultation in national development.  Except in this case.

But there is more.

As I wrote in the opening of ‘Reflections on Republic Day’, on the Raymond & Pierre website on 27 September 2007 -

The best example I can think of for the kind of broad commitment to consultation is, of course, the site of the World Trade Centre in Lower Manhattan: Ground Zero. This is a very interesting example since the site is privately owned and the City of New York is controlled by the Democrats while the Republicans control the national government of the USA. Against this background of different players we have the fact that the destruction of the WTC was a most severe blow to US prestige and power. The entire defense apparatus was rendered useless by that attack. Arguably, there could be no site in the world with a more urgent claim to large-scale redevelopment.

Yet, the fact is that a sort of compact has been arrived at between the parties to the effect that no redevelopment will take place unless and until everyone has had their say. For example, there was a recently concluded international competition for the design of the 911 Memorial. There were over 5,000 entries from more than 60 countries and a winner was just selected.

As expected, the consultations have been controversial and emotional but the fact is that an environment existed in which such an understanding could work. Whatever one’s view of the American imperium, there is a potency to the existence of that huge crater at the heart of their main city while the necessary conversations go on. Time for us to think again.

At that time I was protesting the haste and waste of the then PNM regime, a consequence of their pattern of proceeding with huge developments without any consultation.

At Section 3.1 of the RFP -

TENURE ARRANGEMENT

The proposed Developer will be chosen via this RFP process and shall then enter into a Memorandum of Understanding (MOU) with the Government of Trinidad and Tobago (Ministry of Planning and the Economy) for an agreed lease rate. It is expected that this activity would be finalized within one (1) month of the submission of the said RFP.

Which means that we can expect the choice of the proposed Developer will be made and the lease agreements completed in one month from the closing date. Yes, Friday 4 November.

Sad to say, there is even more.  The RFP also specifies –

“…If financing has to be sourced from an external source, the Developer MUST submit a letter of guarantee from the financier as well as a profile of the financier. Failure to comply with this requirement will result in disqualification…”

When we raised the point that this is an impossible condition for new bidders to satisfy, given the sheer scale of the proposed development, both Ministers – Tewarie and Cadiz – attempted to indicate that this mandatory condition was flexible. Unbelievable, but true.

As leaders, whether in government or non-governmental organisations, we have an obligation to learn from the past. This is an effort to document the events in this episode, so that there will be a record, when the Invader’s Bay matter comes to be critically examined in the future.

The clear inconsistency of the position taken in the budget on urban planning was highlighted in last week’s column. With respect to this project, we noted the attempt to cast this development in the same light as other examples which all involved long-term consultation, the silence on the existing plans, the impossibly-short timetable to elicit fresh proposals, the even-shorter timetable for selection and agreement of lease terms, the wobbling on the financial requirements and incredibly, that the scoring criteria were to be finalized after the proposals were submitted.

It is literally impossible to determine which of these is worse than the others and it is beyond the imagination of any fiction writer I know to take a plot this far. But this is what is happening in our country today.

In my mind, all of these, taken together, show that the publication of the RFP is a form of sham dialogue and openness. If this is the genuine attempt by the MPE, to properly seek the public interest, then I am giving them an ‘F’ for effort.

What we are seeing here is a recipe for disaster, we already have all the ingredients of corruption, so what is next?

It really does make me wonder who runs this country and when, if ever, can we achieve consistent and equitable government. Who is the real power?

Property Matters – The Needs Assessment

The Ministry of Planning & the Economy (MPE) announced last week that 10 proposals had been received in response to its RFP for Invader’s Bay.

Given that MPE has not carried out a Needs Assessment for this prime property, for whatever reason, I will continue to outline the relevant elements for the Invader’s Bay property.  This is not intended to be complete, just a list of what I consider to be the critical items a proper Needs Assessment would include -

• Investment – This is a parcel of land estimated to be worth at least $1.0Bn, so any attempt to describe this process as ‘not being an investment’ would be completely wrong.  In the literal sense, it might not involve any expenditure of State money, but, in every other sense, the disposal of this $1.0Bn asset would constitute a major State investment in Invader’s Bay.
• The National Interest – At this moment the imperative is to diversify our economy so as to find sustainable replacements for our declining energy revenues, so this is an apt point.  Following on last week’s column, it seems reckless that such an attractive State-owned property would be developed without consideration of the strategic issue.  Even on the conventional basis of announcements of construction jobs and permanent jobs etc., it is difficult on purely financial grounds to justify most types of development on that site, especially given the generally depressed market.  The decisive factor, given the level of interest such a unique offering is likely to attract, would be to have as an identified ‘Need’ that only projects which were net earners of foreign exchange would be considered.  Such a condition would eliminate any offices, apartments, foreign franchise restaurants or shopping malls and set the stage for a different development discussion.  A necessary discussion at this point in our country.  Please note that the RFP does state that the project should generate foreign exchange, but that is only expressed as an ‘expectation’, which is far too flexible, given the influence of the traditional property developers.  If the intention is genuinely to break with the past and set off in a new direction, the conditions need to be strong enough to break the grip of the past.
• Balanced Development and Lagging areas – The RFP speaks to these concerns as follows – “…The Government recognizes the value of long term planning as well as problems created when long term planning is ignored. In order to ensure balanced development and restore lagging areas, care must be taken in the development of new areas…”  Those are real concerns, but they seem at odds with the intention of the RFP, since the execution of that plan gives us yet another major development in our capital.  We should consider if this is an area we want to develop at this time – bearing in mind that scarce private-sector resources may be required in other part of the country – for instance, the San Fernando Waterfront and other areas – so that development can be balanced instead of continuing the last administration’s emphasis on POS.  The sidebar contains a comparison of three large-scale ‘urban development’ districts which formed part of the budget.

There is always the question of who controls the terms of these public debates.  The intention from this side is to have that flawed RFP withdrawn.  To proceed as things stand is to continue on a path which lacks the necessary transparency and public participation.  The quantities of money involved and the absence of those critical elements means that we would be proceeding with all the ingredients for corruption.

This RFP amounts to an invitation to tender, so the bogus idea that this is just a discussion or consideration of proposals must be discredited.  It is nothing of the sort.   This RFP is a tender process to put these valuable public lands into private hands, which is quite different from a consultation.  We have to stop any attempt to mix-up the two processes.

The State and its agencies have an over-riding obligation to be exemplary in their conduct.

SIDEBAR – A budget comparison

The 2012 budget sets out three urban development projects, at pages 31 and 32 –

• Invader’s Bay – “…significant interest has been expressed in the transformation of the waterfront along Invader’s Bay. This development has great potential for promoting commercial activities in the services sector and will benefit the country significantly. Such projects are meant to be private sector initiatives utilizing green building technologies and will assist in making Trinidad and Tobago an attractive destination for new investments…”
• Sustainable City Project – East Port of Spain – “…This initiative, is part of a wider “Emerging and Sustainable Cities Initiative” supported by the Inter-American Development Bank of which Port of Spain has been chosen as one of the five pilot cities from170 eligible cities in the hemisphere…This project is being developed in partnership with the East Port of Spain Council of Community Organizations, the Caribbean Network for Urban and Land Management at UWI, the East Port of Spain Development Company, and other key stakeholders. This exercise has also engaged the Making Life Important Initiative of the Ministry of National Security…”
• Chaguaramas – “…the Chaguaramus Development Authority is spearheading development in the North-Western region and a master plan detailing land use proposals for that region will soon be subject to public discussion…”

Of course those three proposals are favouring Trinidad’s north-west peninsula, which returns to the theme of balanced development, but a further description of their relative merits is beyond the scope of this article.  I am inviting readers to consider the varying approaches to an important long-term large-scale issue such as urban development.

In the cases of east POS and Chaguaramas, the commitment to widespread consultation is manifest, yet there is no such commitment evident in the case of Invader’s Bay, which seems to me to be ‘the jewel in the crown’.  The three current strategic plans for POS, all paid for by Public Money, are being ignored by the very Ministry responsible for Planning.

Good Public Administration requires actions which foster the confidence and trust of the public, that is indisputable.  Those policies and actions must be transparent, reasonable and, above all, consistent, if the public is to place real trust in the hands of the administration.

For all those reasons, it is unwise for any administration to operate in an inconsistent fashion.

In the case of Invader’s Bay, with the stakes so very high, it would be reckless to continue in this manner.