Op-Ed: The case of a criminally complicit Cabinet

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Below is an opinion piece by former Attorney General, Attorney-at-law and Member of Parliament Mohabir Anil Nandlall:

Hardly a month passes without the Coalition Government not being engulfed in some procurement scandal. It started with its inauguration bash at the National Stadium in June 2015, and has continued unabated. It appears that there is no foreseeable end. Whenever you think that it cannot get worse, another erupts of even greater proportions.

The list is too long to enumerate. I thought none would have surpassed D’Urban Park; then came the drugs bond and I thought this was the mother of them all; but the fertilizer contract followed; then came the $506M single-sourcing of drugs and pharmaceuticals for the Guyana Public Hospital Corporation (GPHC); HDM Labs Inc. scandal closely followed its heel and the list continues. The consultancy services contract for the feasibility study and design of the proposed new Demerara Harbour Bridge is the latest procurement vulgarity.

Here a process commenced by the National Procurement and Tender Administration Board (NPTAB), in accordance with the Procurement Act in December 2015. Twenty-three (23) foreign and local companies responded to an invitation of an expression of interest for the feasibility study and design of the new bridge. Twelve (12) companies were shortlisted by NPTAB.

However, only two companies submitted proposals within the deadline. Only one of the two companies survived the evaluation process. Unfortunately, the bid submitted by this company was slightly over the budget. The Ministry of Public Infrastructure (MOPI) commenced negotiations directly with the company with a view of arriving at a mutually acceptable price. Upon the recommendations of NPTAB, the negotiations fell through and the tender was eventually annulled.

The Chairman of NPTAB granted approval for MOPI to retender the project. I pause here to emphasise that by law, NPTAB is in charge of the procurement process from the beginning to its end. Once a transaction meets the stipulated value it must be done in accordance with the Procurement Act, supervised by NPTAB. This applies even to sole-sourcing. Any attempt to procure outside of this process is illegal and the expenditure of public funds, thereby, can constitute several criminal offences.

As it turned out, LivenseCSO Engineering Contracting BV, one of the original companies that tendered but failed to make the deadline, either on its own initiative or upon a private invitation by MOPI, provided a proposal, which Minister Patterson boldly took to the Cabinet and, shockingly, managed to get Cabinet’s approval for a total of $161,514,420 GYD to be accessed from the Demerara Harbour Bridge Corporation (DHBC) accounts to cover the cost of the feasibility study for which this company was approved! This must go down as one of the most bizarre happenings in decades.

I have often remarked that I would relish the opportunity to be a fly on the wall in a Cabinet meeting of the Coalition Government. This is one of the reasons why. Some of the most astounding feats are accomplished at this hebdomadal august engagement. That it includes five Attorneys-at-Law, compounds the mystique, especially when it addresses matters of law in this fashion.

It gets even more interesting.

Rawleston Adams, the General Manager of DHBC, signed a contract with the company, LivenseCSO on the 9th day of December 2016. It is to be noted that DHBC is legally managed by a Board of Directors. Adams informed the Public Procurement Commission (PPC) that the Board of DHBC did not make any decision to use funds for this purpose.

Adams rightfully threw Minister Patterson under the proverbial bus by admitting that he did not sign the contract on behalf of DHBC but because he was requested to do so by the Minister.

The contract awarded was for only $148,000,000 GYD, but $161,514,420 GYD was unauthorizedly taken from DHBC. No one has, thus far, accounted for the $13,514,420 GYD difference.

Worse yet, any procurement in such sum, not done in accordance with the Procurement Act, is absolutely unlawful. The expenditure of those funds, therefore, are not only in violation of the Procurement Act, but are also in violation of a series of criminal statutory and common law provisions and principles. The entire Cabinet is intimately and inextricably complicit. This transaction must constitute the most vulgar abuse of the laws of this land by a Government.

It is criminal. Minister Patterson has managed to engraft the entire Cabinet in a joint criminal enterprise. Constitutionally, Cabinet’s responsibility is collective. In the commission of a crime, they would all be acting in concert and aiding and abetting each other.

British consultant to the Special Organised Crime Unit (SOCU), Dr Sam Sittlington, at a Parliamentary Committee, invited the Opposition to make reports of criminal illegalities, which they suspect the Government has committed, to SOCU for investigations. The Leader of the Opposition has signaled that the invitation would be acted upon and this transaction will be reported to SOCU for investigations and the consequent institution of criminal charges.

SOCU’s credibility is already publicly dented because of the countless allegations of political interference against it, coupled with the fact that it only appears to be investigating and charging Opposition politicians. An opportunity will now be presented for this agency to redeem itself and rehabilitate its public image.

Significant in this equation is that the facts, which will be presented in the report to SOCU, are not matters amassed by the People’s Progressive Party (PPP) but would largely comprise of a report and the findings of the constitutional PPC.

Similarly, the Director of Public Prosecutions (DPP) will also be offered an occasion to repair public perception against that office. All they are expected to do is to act professionally and in accordance with the law and not subject themselves to political direction and control. Only recently, the Attorney General admitted in an interview published in the Sunday Chronicle that he caused the private criminal charges filed against five Ministers of his Government to be terminated by the DPP office.

Finally, the British High Commission is being put on notice that the public’s eye will be on the British consultant and the way this matter is handled by SOCU. Let us see whether the rule of law will be allowed to prevail.

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