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Premier misfires on procurement – GoM loses appeal in Court

(l-r) Premier Meade, DFID's Dr. Kato Kimbugwe and Sascha Chennell

(l-r) Premier Meade, DFID’s Dr. Kato Kimbugwe and Sascha Chennell

It was one of those rare occasions when the Premier’s office through governments press officer advised of a joint press conference with the honourable Premier Meade and DFID’s Dr. Kato Kimbugwe, to be held at the conference room. We consented three hours before the scheduled two o’clock to attend upon being told that the press conference would be on ‘projects’’.

It was surprising to receive two releases moments before the press conference would begin, dealing with Access and Lookout School. The questions period at the end of the brief would find a Premier not in the mood to discuss issues relating to procurement procedures which arose out of the Lookout School project.

Ferry subsidy increase

The Premier addressed media briefly on both issues, the main thing on the Access being DFID’s increase in the subsidy to, “facilitate improved sea access to Montserrat. This means a bigger, faster and more comfortable ferry will be operating 5 days a week.”

Neither Premier nor DFID could confirm a timeline for the upgrade to begin, but they enumerated some conditions of tasks that were agreed to be completed within “this financial year.

“These included  “Develop a marketing strategy to tap into the day tripper market in St Kitts and Nevis, Guadeloupe and Antigua and exploring opportunities to open up new regional routes…”

Launch an online booking and ticketing service for the ferry…; Set up a fully functioning access website…; Continue to work with Antigua to access a fully operational Bryson’s pier.

GoM (Government of Montserrat) was to “Ensure SVG develop a fully functional on-line booking service…”

Everyone loved the Ferry - MV Opale

Everyone loved the Ferry – MV Opale

Lookout School

On the Lookout school project the Premier and DFID announced “the approval of additional funding and a time extension to the project.” The announcement also revealed that there would be, “new management and supervision arrangements which outline the Ministry of Finance as the Contracting Authority and PIU as the project supervisor.”

The project now had two completion phases, the first in September this year and the second a whole year later. The overall investment from DFID now stood at £2.475 million and would provide additionally: Refurbished, furnished and equipped buildings at Lookout School; A multi purpose sports hall with changing rooms; IT classroom; Library, and Improved facilities for staff.

The Premier answeringquestions said that while waiting for the issues which halted the project to be resolved, GoM had developed new and additional plans on the school.

Procurement issues – Premier misfires

First of four buildings already underway at Little Bay

First of four buildings already underway at Little Bay

He said the issues and the delay arose out of, “two contractors who both claimed that they should have had the contract awarded.  The matter went before the judge.  The judge has made a ruling on at least one appeal before the High Court in the Court of Appeal here and that’s as much as I can say.”

Asked what the ruling was, “I have not had written details of the ruling,” he responded.

The Case

Surprised at the response, we later enquired into the matter and found there was the court matter was between Vernon White (Trading as White Construction Services) and the Central Tenders Board and the Attorney General regarding Construction of Lookout School Expansion Building 6.

The matter was adjudicated by a single High Court judge in favour of White, but GoM appealed and the matter had just been heard and adjudicated by the Eastern Caribbean Court of Appeal on April 23, 2013).

The court dismissed the appeal and affirmed the order made by the Learned Trial Judge Justice Benjamin; that the Tenders Board acted intra vires; that it was clear from the facts of the case that the claimant submitted a tender and this offer was accepted. He found that the Board had not acted ultra vires in accepting the tender as the tender had met the required specifications.

The appeal court did allow a reduction in the award of costs to White advising that the Learned Trial Judge erred in awarding the sum of $50,000 as the respondent was only entitled to costs on the prescribed scale, which was so ordered.

The Premier agreed with the question whether the ruling was sufficient to move forward. “We will go forward.  Part of it is, we can’t then hold up the development of a country simply because we have locals who are questioning whether or not they should have had a contract.  And those are matters which we are seeking to resolve in order for us to go forward, “  he offered.

Lookout school project - Building 6

Lookout school project – Building 6 to begin

 Procurement issues – tendering issues

The Premier continued on the matter when it was mentioned to him that procurement issues seem to be a problem as there were many questions about the way procurement was conducted. He then said: “Basically, what is happening here is interpretation and application of the rules.  We are in an increasingly litigious society and therefore, we are asking all officers in government who have anything to do with government procurement to look at the rules, read them thoroughly, and apply them as provided for by law.  There are no shortcuts,” he said.

A question to him suggested that there were procurement and tendering issues at Little Bay involving the MDC and new works being carried out there. He responded: “No, in the case of Little Bay, that is direct labour; it’s not a tender process. It’s being managed by the MDC and rather than tendering them out as individual units, they are hiring workers to do the work under the supervision of the MDC…. In effect, the MDC is the contractor.”

Following a further suggestion from the media, after reading a section of the procurement rules, that what MDC was doing was not in keeping with the rules, he noted, “…the rules and regulations are published, also look at them, read them.  And, if there’s an issue then question it on the basis of the regulations that are provided, not in terms of what you believe should be or should not be.”

Pressed further on the matter, the Premier said, “Bennette, it’s similar, for example, if you are building a house, you can go several routes.  One, you can be your own contractor and hire in labour or you can go out and contract a contractor to do the work which means that you have to follow contract law.  In this particular case, MDC has opted for their own efficiencies to be their own contractor…and therefore they are now saying to people, if you are seeking employment, this is the process which you need to follow to seek employment as a tradesman, or as a labourer or as a construction worker or as a supplier of materials.”

The relevant section which has nothing to do with individuals was read to the Premier. “Nevertheless, the MDC remains a government owned company subject to Government of Montserrat statutory body rules and regulations as it is in respect [sic] of public funding.”

Section 3: “3       (1)  These Regulations apply to all procurement by a procuring entity unless –             (a)       the procurement is for purposes of national defence, national emergency or national security; or (b)   the regulations conflict with a provision of an international agreement.

The media, noting the irrelevance still sought clarity pressed even more suggesting that “…public entities cannot circumvent the rules by doing things what it seems that the MDC might be doing in order to avoid tendering…and also by being your own contractor in order to avoid the regulations.”

The Premier responded to that, “If they are in fact in breach then it’s a matter which will be dealt with by the appropriate authority.”

When asked who or what the “appropriate authority” is and said that it was his Ministry, the Premier became obviously annoyed and responded, “Well, you see sometimes we love to identify politicians and you identify individuals.  There is a process.  There’s an authority.  There is an appeals process.  And if you don’t read the regulations and understand what they say then you’ll have this kind of rubbish question,” whereupon there was a protest as he was told to stop it by one member of the media.

He continued, “The point I’m getting at here is very simple.  There is a process; there are procedures.”

It was noted to the Premier,  “I don’t know why you took that personal, Premier, because what I asked, all I was asking was what authority, whether it’s the court but I think you, in part of what you just said, you said that there are processes and there is the authority within the procurement situation so that answered the thing.  And I really cannot do without commenting on the fact that you refer to questions as rubbish questions.  I don’t think that there’s absolutely any rubbish question at any time.”

The press interview in less than half hour, ended abruptly with Premier advising he had another engagement, leaving many follow-up questions yet to be heard.

 

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(l-r) Premier Meade, DFID's Dr. Kato Kimbugwe and Sascha Chennell

(l-r) Premier Meade, DFID’s Dr. Kato Kimbugwe and Sascha Chennell

It was one of those rare occasions when the Premier’s office through governments press officer advised of a joint press conference with the honourable Premier Meade and DFID’s Dr. Kato Kimbugwe, to be held at the conference room. We consented three hours before the scheduled two o’clock to attend upon being told that the press conference would be on ‘projects’’.

It was surprising to receive two releases moments before the press conference would begin, dealing with Access and Lookout School. The questions period at the end of the brief would find a Premier not in the mood to discuss issues relating to procurement procedures which arose out of the Lookout School project.

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Ferry subsidy increase

The Premier addressed media briefly on both issues, the main thing on the Access being DFID’s increase in the subsidy to, “facilitate improved sea access to Montserrat. This means a bigger, faster and more comfortable ferry will be operating 5 days a week.”

Neither Premier nor DFID could confirm a timeline for the upgrade to begin, but they enumerated some conditions of tasks that were agreed to be completed within “this financial year.

“These included  “Develop a marketing strategy to tap into the day tripper market in St Kitts and Nevis, Guadeloupe and Antigua and exploring opportunities to open up new regional routes…”

Launch an online booking and ticketing service for the ferry…; Set up a fully functioning access website…; Continue to work with Antigua to access a fully operational Bryson’s pier.

GoM (Government of Montserrat) was to “Ensure SVG develop a fully functional on-line booking service…”

Everyone loved the Ferry - MV Opale

Everyone loved the Ferry – MV Opale

Lookout School

On the Lookout school project the Premier and DFID announced “the approval of additional funding and a time extension to the project.” The announcement also revealed that there would be, “new management and supervision arrangements which outline the Ministry of Finance as the Contracting Authority and PIU as the project supervisor.”

The project now had two completion phases, the first in September this year and the second a whole year later. The overall investment from DFID now stood at £2.475 million and would provide additionally: Refurbished, furnished and equipped buildings at Lookout School; A multi purpose sports hall with changing rooms; IT classroom; Library, and Improved facilities for staff.

The Premier answeringquestions said that while waiting for the issues which halted the project to be resolved, GoM had developed new and additional plans on the school.

Procurement issues – Premier misfires

First of four buildings already underway at Little Bay

First of four buildings already underway at Little Bay

He said the issues and the delay arose out of, “two contractors who both claimed that they should have had the contract awarded.  The matter went before the judge.  The judge has made a ruling on at least one appeal before the High Court in the Court of Appeal here and that’s as much as I can say.”

Asked what the ruling was, “I have not had written details of the ruling,” he responded.

The Case

Surprised at the response, we later enquired into the matter and found there was the court matter was between Vernon White (Trading as White Construction Services) and the Central Tenders Board and the Attorney General regarding Construction of Lookout School Expansion Building 6.

The matter was adjudicated by a single High Court judge in favour of White, but GoM appealed and the matter had just been heard and adjudicated by the Eastern Caribbean Court of Appeal on April 23, 2013).

The court dismissed the appeal and affirmed the order made by the Learned Trial Judge Justice Benjamin; that the Tenders Board acted intra vires; that it was clear from the facts of the case that the claimant submitted a tender and this offer was accepted. He found that the Board had not acted ultra vires in accepting the tender as the tender had met the required specifications.

The appeal court did allow a reduction in the award of costs to White advising that the Learned Trial Judge erred in awarding the sum of $50,000 as the respondent was only entitled to costs on the prescribed scale, which was so ordered.

The Premier agreed with the question whether the ruling was sufficient to move forward. “We will go forward.  Part of it is, we can’t then hold up the development of a country simply because we have locals who are questioning whether or not they should have had a contract.  And those are matters which we are seeking to resolve in order for us to go forward, “  he offered.

Lookout school project - Building 6

Lookout school project – Building 6 to begin

 Procurement issues – tendering issues

The Premier continued on the matter when it was mentioned to him that procurement issues seem to be a problem as there were many questions about the way procurement was conducted. He then said: “Basically, what is happening here is interpretation and application of the rules.  We are in an increasingly litigious society and therefore, we are asking all officers in government who have anything to do with government procurement to look at the rules, read them thoroughly, and apply them as provided for by law.  There are no shortcuts,” he said.

A question to him suggested that there were procurement and tendering issues at Little Bay involving the MDC and new works being carried out there. He responded: “No, in the case of Little Bay, that is direct labour; it’s not a tender process. It’s being managed by the MDC and rather than tendering them out as individual units, they are hiring workers to do the work under the supervision of the MDC…. In effect, the MDC is the contractor.”

Following a further suggestion from the media, after reading a section of the procurement rules, that what MDC was doing was not in keeping with the rules, he noted, “…the rules and regulations are published, also look at them, read them.  And, if there’s an issue then question it on the basis of the regulations that are provided, not in terms of what you believe should be or should not be.”

Pressed further on the matter, the Premier said, “Bennette, it’s similar, for example, if you are building a house, you can go several routes.  One, you can be your own contractor and hire in labour or you can go out and contract a contractor to do the work which means that you have to follow contract law.  In this particular case, MDC has opted for their own efficiencies to be their own contractor…and therefore they are now saying to people, if you are seeking employment, this is the process which you need to follow to seek employment as a tradesman, or as a labourer or as a construction worker or as a supplier of materials.”

The relevant section which has nothing to do with individuals was read to the Premier. “Nevertheless, the MDC remains a government owned company subject to Government of Montserrat statutory body rules and regulations as it is in respect [sic] of public funding.”

Section 3: “3       (1)  These Regulations apply to all procurement by a procuring entity unless –             (a)       the procurement is for purposes of national defence, national emergency or national security; or (b)   the regulations conflict with a provision of an international agreement.

The media, noting the irrelevance still sought clarity pressed even more suggesting that “…public entities cannot circumvent the rules by doing things what it seems that the MDC might be doing in order to avoid tendering…and also by being your own contractor in order to avoid the regulations.”

The Premier responded to that, “If they are in fact in breach then it’s a matter which will be dealt with by the appropriate authority.”

When asked who or what the “appropriate authority” is and said that it was his Ministry, the Premier became obviously annoyed and responded, “Well, you see sometimes we love to identify politicians and you identify individuals.  There is a process.  There’s an authority.  There is an appeals process.  And if you don’t read the regulations and understand what they say then you’ll have this kind of rubbish question,” whereupon there was a protest as he was told to stop it by one member of the media.

He continued, “The point I’m getting at here is very simple.  There is a process; there are procedures.”

It was noted to the Premier,  “I don’t know why you took that personal, Premier, because what I asked, all I was asking was what authority, whether it’s the court but I think you, in part of what you just said, you said that there are processes and there is the authority within the procurement situation so that answered the thing.  And I really cannot do without commenting on the fact that you refer to questions as rubbish questions.  I don’t think that there’s absolutely any rubbish question at any time.”

The press interview in less than half hour, ended abruptly with Premier advising he had another engagement, leaving many follow-up questions yet to be heard.