Jamaica
The Ministry of Education and two state agencies named in the Integrity Commission’s report on the circumstances surrounding the award of Government contracts to Westcon Construction over several years, were absolved of having to answer to allegations of breaches of the Contractor General Act, by failing to report over 20 contracts among them to the Contractor General.
In a letter to the speaker of the House of representatives and the president of the senate dated January 12 — a month prior to the tabling of the report in the House of Representatives this Tuesday — the commission’s director of corruption prosecution Keisha Prince-Kameka said although there is no limitation period for the prosecution of offences under the Act, “a likely challenge to these proceedings is one of a lack of fairness to the accused, on the basis of the constitutional right to a fair trial within a reasonable time, in accordance with the Constitution of Jamaica”, in reference to the National Works Agency (NWA) and the Ministry of Education, which the commission in its report said had failed to report 25 multimillion-dollar contracts between them, in their quarterly contract awards (QCAs).
Prince-Kameka said there was not enough evidence to mount charges against the NWA and the education ministry for breaches, for failing to report the award of multiple contracts to the contractor general in their QCA reports as “the prosecution would be hard pressed to resist an abuse of process application with regard to undue delay”.
She said the offence of disobeying a lawful request from the contractor general in regard to the QCAs, and a lack of lawful justification for failing to comply, had not been sufficiently proven.
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Trinidad and Tobago
Construction of a new flagship building for the Urban Development Corporation of Trinidad and Tobago (UDeCOTT) is expected to commence in the third quarter of this year but at least one expert is warning it’s a waste of money and another grandiose project.
The new location of its headquarters is earmarked for Queen’s Park East between Cadiz Road and Belmont Circular Road, adjacent to the National Insurance Board (NIB) Headquarters.
In a public notice in the daily newspapers and on its website, UDeCOTT invited suitably qualified and experienced entities to submit proposals for the construction of the phase one—base building.
The company said that Request for Proposals (RFP) purchase package was opened on December 12, 2022, and a non-refundable deposit of $8,750 Value Added Tax (VAT) Inclusive, and the deadline date for submissions was February 6, 2023.
The scope of works for the project includes the construction of nine storeys of the superstructure and three levels of basement parking, the construction of the building shell, and cladding, base building interior finishes, walls, floors and ceiling finishes to the core and generic spaces.
The Express Business asked UDeCOTT about the estimated cost of the project but the State enterprise noted that the project is currently in the tendering phase, so to reveal the estimated cost at this juncture, flouts the process and is not in keeping with Procurement Best Practices.
As to the need for the expenditure, UDeCOTT responded by saying the company’s staff is currently housed across several locations, which is not the ideal circumstance for seamless work continuity, in addition to the fact that the company pays rental fees at these locations.
UDeCOTT revealed that its intention is to generate additional revenue by renting out space at its new head office.
“Part of the new headquarters will house commercial tenants and revenue generated from these tenants will assist with maintenance of the headquarters,” the company outlined.
With respect to the eligibility requirements for the Procurement Process, UDeCOTT outlined requirements for the provision of works:
-Submission of Annual Return—2021 (2022 if applicable) (for companies incorporated/registered in Trinidad and Tobago); -Incorporation or otherwise registered to do business in Trinidad and Tobago as evidenced by the Certificate of Incorporation or Registration (as applicable); -Submission of valid Statutory Clearance/Compliance Certificates, viz. VAT Clearance Certificate; BIR Clearance Certificate; NIS Certificate of Compliance.
The company also noted that the RFP for this project was advertised in all three daily newspapers, UDeCOTT’s website, and social media platforms. The project is currently at the Tender Stage.
As it pertains to UDeCOTT’s audits, it indicated that the 2016 Audited Financial Statement was completed and placed on the company’s official website, and audited financials for 2017, 2018 and 2019 are being finalised to be laid in Parliament. While financial statements for 2020, 2021 and 2022 are scheduled to be completed this calendar year.
Express Business reached out to Afra Raymond, managing director of Raymond & Pierre Limited and past president of the Joint Consultative Council for the Construction Industry (JCC), who questioned the need for a brand-new building at this time.
Raymond said many businesses after the onslaught of Covid-19 cut down their office space, as the work-from-home model seemed to have worked.
“Again, we see the inexcusable decision to provide civil servants with first-class offices… Never-see-come-see! It seems that UDeCOTT is planning to offer space to rent to defray the cost, apart from the rental gap, the first-class office market is so saturated with a gross over-supply and it is doubtful as to how many tenants one can attract,” he highlighted.
Raymond drew a comparison with T&T’s private sector leaders of commerce and industry such as Massy Group, ANSA McAL, TATIL, Guardian Life and Associated Brands/Holiday Foods. He noted that Blue Waters, Francis Fashions and CLICO are all into their super-profits and have not built new headquarters in prime location—as the previous numbers show, those are simply infeasible.
He also questioned if a feasibility test was done, as he said the break-even rent for that project is the amount the building must rent for to repay the bankers, and in this case, it is certainly over $30 per square foot and the market in Port of Spain has no space which rents for over $20 per square foot
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Cayman Islands
(CNS): The Cayman Islands Government recently began a search for consultants to help PACT set out a policy around the UN Sustainable Development Goals. The Ministry of Sustainability and Climate Resiliency is looking for experts to conduct a twelve-week project to facilitate discussions around sustainability both in individual ministries and across the entire government.
The successful applicants will make recommendations to Cabinet about targets under those goals that should be considered as the priority areas of focus for the remainder of this administration, which ends in May 2025.
While sustainability has been pushed by the government as PACT’s overarching theme, almost two years into the administration what that actually means has not been defined.
In an address to a business audience at the Chamber of Commerce annual general meeting last week, Premier Wayne Panton, who has responsibility for the SCR ministry, admitted that the goal to grow the economy in a sustainable way and ensure Caymanians are not left behind was a delicate balance, and the government isn’t always getting that balance right.
He said the government is formulating a comprehensive Cayman Sustainability Agenda that will make the islands a place for Caymanians to “live and thrive while ensuring that it is a welcoming place for newcomers who wish to become part of our diverse social fabric”.
But over the first 22 months of this government, development has largely continued unchecked while the population has soared to unprecedented levels, putting pressure on infrastructure and the natural world. The significant amount of roads under construction and the development of luxury condos continues, while projects relating to sustainability seem elusive.
The long-anticipated climate change policy, which was expected last September, has still not been unveiled. The proposed development plan remains under wraps. The landfill project remains stalled, with the recycling project set back recently after Dart announced it would no longer recycle glass for use in construction.
No plans have been rolled out for reducing car imports or introducing a new transport system, and ideas floated some ten months ago about the government taking ownership of renewable energy projects have not been fleshed out. The problems of both beach access and beach erosion have yet to be tackled, and the proposal for a true line in the sand on development too close to the sea on Seven Mile Beach also hasn’t materialised.
The Cayman Islands Airports Authority’s long-term plans don’t appear to be taking climate change into consideration. And news of a new cargo port in George Town that will involve dredging or building an entirely new dock in an untouched part of the island to accommodate evermore imports suggest that the political promise of sustainability is a long way from being met.
And while the National Conservation Council is still acquiring land for preserving critical habitat and has enhanced protections for local flora and fauna from alien species, no other government entity appears to have made any notable headway or created new policies relating to sustainability, though the Health Service Authority has installed solar panels on the hospital roof.
The tender process for consultants to conduct this review appears to be about a broader look at the concept of sustainability and engaging with the senior civil servants as well as ministers across all 22 ministries and portfolios.
According to the request for proposals, the selected consultants will be expected to facilitate discussions and focus groups in the civil service framed around the United Nations Sustainable Development Goals and to familiarise each entity with the framework those goals are based on.
The aim is to create an inventory of completed and ongoing work and explore where it can be mapped to the goals and to any planned works for 2023 and future budget periods. The report will also look at other priorities that align with the goals that are recognised in the 2022-23 Strategic Policy Statement.
The consultants will identify local and global trends and issues related to individual entities, explore and unpack the areas of the work relating to the goals that can be included in the 2022 Annual Report, and prioritise five to seven goals for the next two years.
An overall summary of the findings from the discussions, with the recommendations and a final report of the overall conclusions, will be delivered by the end of May.
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Guyana
In last week’s article, we began a discussion on the actions that need to be taken to bring about an improvement in Guyana’s score and ranking on the Corruption Perceptions Index (CPI). Last year, Guyana scored 40, the lowest for the English-speaking Caribbean and the second lowest from among the CARICOM countries. It also ranked 85th among 180 countries surveyed. In 2012, Guyana’s score was 28. Eight years later, it moved to 41. The 13-point increase occurred mainly during the period 2016-2020, when its score moved from 29 to 41. The largest increase was in 2016 when a five-point increase from 29 to 34 was recorded. This enhanced performance was mainly due to several initiatives undertaken, as outlined in last week’s article.
We had stated that, considering these initiatives, Guyana had the opportunity to build on this improved performance if it could continue to intensity its efforts to improve its governance, including transparency and accountability, and ensure appropriate disciplinary actions are taken against those found guilty of undermining such efforts. In this regard, we had estimated that within five years it would have been able to achieve the 50 percent mark on the CPI. Regrettably, events during the period January 2019 to July 2020 marred such efforts.
In today’s article, we continue our discussion on the subject.
Public Procurement Commission
The Public Procurement Commission (PPC) is responsible for ensuring that the procurement goods/services and the execution of works is conducted in a ‘fair, equitable, transparent, competitive and cost effective manner…’. It is required to monitor compliance with the Procurement Act, especially as regards the award of contracts. However, after 15 years since the Constitution was amended to provide for the establishment of the Commission, it was not until October 2016 that the first five members of the Commission were appointed. Additionally, during the 31-month period from November 2019 to June 2022, the Commission remain-ed dormant, as the tenure of office of its members had expired.
The Commissioners are appointed based on a recommendation of the Public Accounts Committee (PAC), and their appointments have to be ratified by at least two-thirds of the voting members of the National Assembly. They must have expertise and experience in procurement, legal, financial and administrative matters. Article 212X (1) makes it clear that for a person to be appointed all four requirements have to be met. As regards the appointment of the current members, the PAC had invited ‘stakeholders, political parties, civil organisations as well as individuals … to submit names of persons to be considered as Commissioners’, with a deadline of 17 May 2021. However, it was not until 1 June 2022 that the present members were appointed.
In view of the requirement of Article 212W (2) for the Commission to be independent, impartial and to discharge its functions fairly, one would have thought that political parties would have been excluded from nominating persons to serve on the Commission. That apart, one may legitimately ask why are persons not requested to apply directly for the position? What procedures does the PAC follow in identifying the persons for appointment to the Commission? In particular, is there a system of shortlisting candidates and conducting interviews to identify those who were best suited for the position? Without casting any aspersion on the current members, is it coincidental that only persons nominated by the two major political parties are the ones who have been appointed? And did they all meet the job specifications for the position? A similar situation occurred in 2016 when the first Commissioners were appointed. At that time, the Chairperson of the PAC was the current President, and a precedent was set, that is, you approve our nominees and we approve yours. No wonder, the appointment of the candidates on both occasions received unanimous support from the Assembly. But is this the intention of the constitutional amendments?
A key responsibility of the Commission is to investigate complaints from suppliers, contractors and public entities, and propose remedial action. Any decision of the Commission is appealable to the Public Procurement Commission Tribunal, with further appeal to the Court of Appeal. However, no such tribunal is in place, and only five investigative reports were issued since the Commission was activated in 2016. Additionally, although the Commission is required to investigate cases of irregularities and mismanagement, the only one such investigation was undertaken. Article 212CC also requires the Commission to table an annual report of its operations in the Assembly. However, to date there was no evidence that this was done. Furthermore, by Section 54 of the Procurement Act, the Cabinet’s involvement in the procurement process was to have ceased upon the activation of the PPC. However, the Cabinet continues to offer its no objection to the award of contracts in excess of $15 million.
Concerns have been raised over the functioning of the National Procurement and Tender Administration Board (NPTAB) which is responsible for ‘exercising jurisdiction over tenders the value of which exceeds such an amount prescribed by regulations, appointing a pool of evaluators …, and maintaining efficient record keeping and quality assurances systems’. Section 16 of the Act requires the Board to comprise seven members: not more than five from the Public Service, and not more than three from the private sector after consultation with their respective organisations. The appointments are made by the Minister of Finance for a period of not more than two years. Two members are to serve on a full time basis, with the Minister appointing the Chairperson from one of the full-time members.
The Act is silent on whether the appointments can be renewed. Following the change in Administration in August 2020, new members of the NPTAB were appointed. The Minister of Public Works had stated that the Chairperson’s appointment was a temporary one, considering that the official is a senior official of the Ministry of Finance responsible for monitoring the execution of the Government’s Public Investment Programme. Apart from concerns about perceived conflict of interest, the official was holding two full-time positions at the same time, contrary to Section 16 (4) that provides for the Chairperson of NPTAB to serve on a full-time basis. Twenty-nine months on, the position has not changed. Additionally, concerns have also been expressed that some of members were too closely associated with the political party in government. The term of office of the members of the Board came to an end last September, but there was no announcement as to whether their appointments were renewed.
Some seven years ago, we had estimated that 20 percent of funds expended on public procurement did not represent value for money, through poor tender award; over-priced contracts; inadequate monitoring of the execution of works; substandard works performed; short supply of goods and services; and overpayments to suppliers and contractors, among others. With almost 50 percent of the national budget now devoted to infrastructure development works, the extent of the leakages in public procurement is likely to be higher.
The above observations are enough cause for serious reflection. We therefore urge the Authorities to take appropriate measures be taken to ensure full compliance with both constitutional and legislative requirements regarding public procurement. This is an area that affects most of Guyana’s performance on the CPI.
Integrity Commission and Code of Conduct
The Integrity Commission has had a checkered history since the appointment of the first Commissioners in 1999, especially during the period 2006 to 2017 when it was without the services of a chairperson without whom meetings could not have been held for want of a quorum. To make matters worse, during the period 2012 to 2018, the Commission remained dormant as the tenure of appointment of the two other members had expired, without replacement. The annual budgetary allocations over the years were also woefully inadequate to enable the Commission to discharge its mandate.
On several occasions, we had argued that it is simply not enough for the Commission to monitor the submission of annual financial declarations of public officials and to publish the names of defaulters. The law requires the defaulters to be prosecuted. That apart, the declarations need to be probed for completeness and accuracy as well as for any inconsistency with the lifestyles of the officials involved. There are also penalties for making false and incomplete declarations. In this regard, it would be helpful for the Commission to liaise with the Guyana Revenue Authority to identify any mismatch between an official’s annual declaration and his/her tax returns. The Schedule to the Integrity Commission Act also provides for a Code of Conduct to which public officials are required to adhered. The Code was revised in 2018. However, although there were several instances of violation of the Code over the years, none of these violations have resulted in the prosecution of the concerned officials.
Section 36 of the Integrity Commission Act requires the Commission to prepare and submit to the President an annual report of its activities, which report is to be laid in the Assembly. However, although the report for 2018 was submitted to the President, there was no evidence that it was laid in the Assembly. There was also no evidence of any further report being issued.
This above state of affairs raises important questions about the seriousness of successive Administrations to have a fully functioning Commission in place aimed at assisting in the prevention and fight against corruption and mismanagement of public resources, and to hold corrupt public officials to account.
Now that the Integrity Commission has been activated, it should take the necessary steps to ensure that the Commission is adequately resourced to effectively discharge its mandate before moving to the next stages of its mandate. These include: (i) initiating action to prosecute those who have failed to submit financial returns as well as those who have violated the Code of Conduct; and (ii) scrutinizing the declarations received for completeness and accuracy and taking appropriate actions as necessary. The Commission should also consider making representation for the adoption of the Jamaican model by integrating the responsibilities of the PPC with those of the Commission, so as to have in place a single anti-corruption agency. We believe that such a merger will provide a more effective mechanism for fighting corruption.
It seems inappropriate for some of the persons who are required to declare their income, assets and liabilities to the Commission to be the very ones to decide on the allocation of financial resources to this important anti-corruption body. Perhaps, the time has come for the Commission to be converted into a constitutional agency. Also, considering the difficulties over the years for the President and the Leader of the Opposition to agree on the names of persons to serve on the Commission, consideration could be given to having in place alternative models. For example, the President can make the appointment of four members on the recommendations of recognized and independent civil society organisations, with the President appointing the other member based on his own deliberate judgment.
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Jamaica
Prime Minister Andrew Holness has been cited for a possible conflict of interest in the awarding of Government contracts totalling millions of dollars to an entity – Westcon Construction Limited – and has been referred to the Director of Corruption Prosecution at the Integrity Commission for possible further action.
The Commission’s 107-page report, which was tabled in Parliament on Tuesday, also implicates two state agencies, the National Works Agency (NWA) and the Social Development Commission (SDC).
The contracts were awarded between 2006-2009, which overlaps with the period when Holness was the Minister of Education, Youth and Information. The prime minister is the Member of Parliament for St Andrew West Central
The two directors of Westcon Construction—Robert Garvin and Donovan Simpson—are personally known to Holness for more than 20 years, the investigation, which started at the now-defunct Office of the Contractor General (OCG), found.
Pointing to the possible conflict of interest, the Director of Investigation at the Integrity Commission referred Holness to the Director of Corruption Prosecution for consideration with respect to breaches of the Contractor General Act, the Public Sector Procurement Regulations 2008, the Corruption (Prevention) Act, and/or any other applicable law.
The Integrity Commission said the investigation sought to ascertain, inter alia:
(a) the nature and particulars of Government of Jamaica (GoJ) contracts that were awarded to Westcon Construction Limited during the relevant period;
(b) the nature and extent of the relationship between… Holness and the directors/principals of Westcon Construction
(c) the extent of the involvement, if any, of…Holness in the award of GoJ contracts to Westcon Construction
(d) whether the circumstances surrounding the awarding of contracts and/or the process(es) utilised by (i) the Ministry of Education, Youth and Information (MOEYI)(ii) the NWA(iii) the SDC was devoid of irregularity and impropriety and was fair and transparent”.
The investigation found that 10 contracts valued at $21.8 million were awarded by the MOEYI to Westcon Construction during the period February 14, 2007 and November 10, 2009.
Of the 10 contracts, each valued between $1.4 million and $3.3 million, only five were reported to the OCG by way of the MOEYI’s Quarterly Contract Award (QCA) Reports for the period.
Additionally, the probe found that the NWA awarded 34 contracts to Westcon Construction valued at $33.7 million between July 16, 2009 and June 6, 2016. Of the 34 contracts, 26 fell within the value threshold that required the NWA to submit particulars of the contracts to the then contractor general by way of its QCA Reports. However, only six of the 26 contracts were reported to the OCG by way of the NWA’s QCA Reports for the period, according to the investigation.
Chief Executive Officer at the NWA, EG Hunter, advised the OCG that “…there are no records to indicate the method of procurement that was utilised for the award of the referenced contracts.”
Hunter also advised that “… the procurement records do not show where any of the referenced awards listed went before the committee for approval”.
Regarding the SDC, the investigation found that two contracts were awarded to Westcon Construction during the period December 20, 2007 and September 10, 2009.
Both contracts were reported to the OCG by way of the SDC’s QCA submission, where it was indicated that the Limited Tender procurement methodology was utilised for the award of contract in the amount of $375,000, and the Sole Source procurement methodology for the award of a contract in the amount of $1,450,000.
However, the Executive Director at the SDC, Dr Dwayne Vernon, told investigators that “there is no evidence of the SDC utilising formal tender procedures for the procurement for the works and services executed by Westcon Construction Limited.”
The OCG was also advised by Vernon that the records indicated that “…Westcon Construction was introduced to the SDC by way of letter from the MP”. Vernon also indicated that “…there is no evidence available to the SDC detailing how Westcon Construction was selected to provide services, as the SDC did not procure such services. This was done at the level of the constituency.”
According to the commission’s report, Westcon Construction Limited was incorporated on October 11, 2004, and was registered by the Companies Office of Jamaica (COJ) with Garvin and Simpson as directors/shareholders and Jerome Green as secretary.
The investigation also details the nature and extent of the relationship between Holness and the directors and/or principals of Westcon Construction. It said both Garvin and Simpson are known to Holness for over two decades.
“Based upon the disclosure, which was made by…Holness, Mr Robert Garvin is personally known to him and had been employed both in the prime minister’s [St Andrew] West Central constituency and his personal business. It was also disclosed by the prime minister that Mr Donovan Simpson is known to him ‘casually’, and was introduced to him by Mr Garvin, and that Mr Simpson was engaged by him ‘privately’ to undertake land surveying work,” the report said.
The investigation found that Garvin was also a director in Positive Jamaica Foundation Limited, where Holness is a director. It also found that Garvin, Finance Minister Dr Nigel Clarke and Warren Vernon were listed as “ceased directors” as at November 1, 2016.
Additionally, Holness and Garvin are listed as directors of Sunshine Mobile Company, with the core business activity being the provision of transportation consultancy. Holness has been a “ceased director” as of September 2007, and is listed as a shareholder alongside Garvin.
Both Garvin and the prime minister’s wife, Juliet Holness, the Member of Parliament for St Andrew East Rural and Deputy Speaker of the House of Representatives, were listed together as directors of Omega Bridge Finance, for which the core business activity is listed as investments.
In November 2016, Garvin was listed as a ceased director in the company, West Central Saint Andrew Trust, for which Holness was listed as a director.
Meanwhile, the investigation found that the then accounting and accountable officers of the then MOEYI breached sections 29(a) and (b)(ii) of the Contractor General Act as a result of their failure to submit the requisite QCA Reports to the OCG, advising of the award of five contracts to Westcon Construction during the subject period:
The director of investigation also concluded that the then accounting and accountable officers of the NWA breached sections 29(a) and (b)(ii) of the Contractor General Act as a result of their failure to submit the requisite QCA Reports to the OCG, advising of the award of 20 contracts to Westcon Construction Limited during the subject period, and which fell within the contract value threshold for reporting.
The director of investigation concluded further that the NWA failed to prepare and/or preserve documentation for 34 contracts which were awarded to Westcon Construction during the subject period.
“This failure, on the part of the NWA, amounts to a breach of section 2.10.1 and subsection 2150 of the then applicable GOJ Handbook of Public Sector Procurement Procedures, which stipulates the mandatory minimum period for the retention of public procurement records.
“This has had the effect of impairing the OCG’s efforts in determining (a) whether all the contracts were awarded transparently and on merit, and (b) the basis upon which certain contractors were selected to undertake a multiplicity of works, and (c) whether value for money was obtained by the GOJ,” the report said.
“Having regard to the foregoing, the DI (director of investigation) has reasonable grounds to conclude that the NWA displayed scant regard for established standards of accountability and transparency stipulated by the GOJ Handbooks of Public Sector Procurement Procedures,” the report added.
“The DI concludes that the failure of the NWA to retain and furnish the procurement records relevant to the subject award of contracts is probative of its contempt for transparency and accountability, and brings into question the agency’s commitment to principles of good governance and prudent financial management.”
The DI also concluded that a discrepancy exists between (a) the representations made by the SDC in its QCA Reports that the Sole Source procurement methodology was utilised in the award of contracts to Westcon Construction, and (b) the disclosure by Dr Dwayne Vernon on June 22, 2016, that “no formal procurement procedures were utilised” in the same contract awards.
It said: “Having regard to the dichotomy which subsists, given the absence of documentation to the contrary and the sworn testimony of Dr Dwayne Vernon, the DI accepts the testimony that no formal procurement procedures were utilised and, therefore, concludes that the SDC breached Section 29 of the then applicable Contractor General Act by its representation in its QCA Reports concerning the procurement methodology utilised in the award of contracts to the referenced contractor.”
According to the report, “the director of investigation has found evidence which provides grounds for forming the view that the SDC acted upon the instructions which were conveyed by the Most Hon Andrew Holness, by way of letters dated December 20, 2007, and September 23, 2009, and made payments to Westcon Construction Limited in the amounts of $375,000 and $1,450,000 without the utilisation of the mandatory formal GoJ procurement procedures. The payments were made by the SDC in respect of works which were stated to have been executed in the constituency of West Central St Andrew.
“Notwithstanding the fact that the SDC was the implementing agency entrusted with the authority to effect the administration of GOJ contracts and thereby enforce the stipulated formal procurement procedures, the director of investigation concludes that the Most Hon Andrew Holness, by his admitted recommendation of Westcon Construction Limited, may have influenced the award of the contracts to the mentioned contractor,” said the report.
Based on the findings of its director of investigation, the Integrity Commission has referred a copy of its Investigation Report to the director of corruption prosecution for such actions as the director may deem to be appropriate.
The NWA and the SDC were similarly referred.
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