Once again, controversial development proposals for Invaders’ Bay are back in the news. Those proposals of the Peoples Partnership government appeared to have stalled after the successful legal action taken by the JCC in 2012, but we are now hearing of substantial proposals from the PNM government. Some serious questions have to be answered so that the public can understand the situation.
Invaders’ Bay is a 70-acre parcel of State-owned reclaimed land south of the Movietowne/Pricesmart/Marriott complex near to the National Stadium in west POS. In August 2011, the Ministry of Planning and the Economy published a Request for Proposals (RFP) inviting offers to develop those lands by design, finance and construct proposals.
The entire RFP process was deeply flawed and strongly criticized by the JCC, the T&T Chamber of Commerce, the T&T Manufacturers’ Association and the T&T Transparency Institute, as well as the PNM, then in opposition. To make just one example, the RFP entries were judged in accordance with Assessment Criteria which were published a full month after the closing date. At the time, I labelled the entire scheme as possessing all the ingredients for corruption – see http://www.jcc.org.tt/invadersbay.htm – but most importantly, the RFP was issued in breach of the Central Tenders Board Act. Continue reading “Property Matters – Invaders’ Bay Reboot”→
Two important laws were partially-proclaimed by the President at the end of July –
The Public Procurement and Disposal of Public Property Act, which is intended to control transactions in Public Money, and the
Planning & Facilitation of Development Act, which is intended to provide for effective control of physical development.
Both those laws would be critical in controlling the worst excesses in terms of waste and theft of Public Money as well as the scourge of unplanned development. There is still substantial work to be done to properly implement those new laws, neither of which will actually come into effect before elections on 7 September, so our stern attention will therefore be essential.
The campaigning and committee-work to achieve those new laws has been demanding, so it Is important to re-state our fundamental concern as to the sheer hostility of high-level public officials to the truth. This is a fundamental point since the new laws create modern, transparent and participative processes. If the key public officials maintain their hostility to the truth, we would be entering a period of serious struggles to implement these new laws.
The complete overhaul of our country’s public procurement system is urgently required, given the daily reports of large-scale theft and waste of public money.
The last administration lost public confidence due largely to the high levels of corruption, as revealed in the Uff Enquiry into the Public Sector Construction Industry.
The JCC met in April 2010 with the leadership of the People’s Partnership at its request and with the media in attendance.
At that meeting, the People’s Partnership made three significant promises:
Implementation of the recommendations of the Uff Report – This was the first item at the first post-Cabinet press briefing on July 1, 2010, with the Justice Ministry being tasked to implement those critical recommendations. That promise has been broken.
Tabling of legislative proposals for public procurement within one month of an electoral victory. Then Finance Minister Winston Dookeran did lay two draft bills — a 1997 draft to repeal the Central Tenders Board Act and a 2006 draft Public Procurement Bill — so that promise was fulfilled.
On December 11, I wrote ‘Invader’s Bay Review‘ in this space, calling for an immediate public review of that improper large-scale development being proposed on reclaimed State lands in west POS. I also took the opportunity to make the point that there had been no consultation on that proposed development and that UDECOTT’s repeated public statements that its operations are now compliant with the Uff Report recommendations are false.
UDECOTT’s response was to place full-page advertisements in the three daily newspapers, on Saturday 14 and Sunday 15 December, in an expensive attempt to refute my criticisms. My letter to the editor, carried in this newspaper on the Sunday, put UDECOTT’s misleading advertisement in context and reaffirmed the continuing falsehood of their claimed compliance with the Uff Report. The episode is recounted here.
There are several lessons one can draw from this exchange – the sheer hostility to the truth which is now becoming a disturbing ‘new normal‘ in our society; the invisible hand of the bureaucracy in devising large-scale developments, stated to be for the benefit of citizens, without citizen inputs; the inescapable reality that these obstructive forces operate across and within all our political administrations.
Sunity Maharaj wrote a fine overview of these burning issues in ‘Amandla! Now listen to the people‘ in the 15 December Sunday Express. In that article, Sunity detailed the development of a perverse consultation industry “Its specialty is in designing events that look like consultation, sound like consultation but do not actually involve consultation…”.
There is a serious challenge facing us here, since there is no will to implement the beneficial recommendations contained in the Uff Report, despite the repeated false promises. The failure to implement those proposals is deeply detrimental to our society as it entrenches the colonial idea that development is not something which really concerns the people of this country. Worse, the deceptive policy of politicians claiming to intend to do the right thing, while doing the underhanded thing, is imposing a neo-colonial reality. The State has a duty to be exemplary in its conduct and for the State to fail to do so and to act deceptively in that failure, is to increase cynicism and instability in our society.
In addition to failing to implement the Uff Report recommendations, there was also another significant setback. The Enquiry website – www.constructionenquiry.gov.tt – which held all of the proceedings and evidence, became inaccessible at the end of 2010, about 6 months after the Peoples Partnership electoral victory.
The JCC has been pressing for the implementation of the Uff Report recommendations and the restoration of the Enquiry website. Those efforts have ranged from the Attorney General, who directed us to the Minister of Justice, to the then Minister Volney who ignored our three letters on the matter – see http://www.jcc.org.tt/uff.htm. When we pressed-on with Volney’s successor, Christlyn Moore, the exchanges were sobering.
The two previous Ministers of Justice – Volney and Moore – both claimed that the Uff Report recommendations were to be implemented by the impending Public Procurement legislation. Quite apart from the inordinate delay in bringing these critical new laws into being, that claim is entirely false, since only one of the recommendations, the 56th, relates to new Public Procurement laws. 90 of the 91 recommendations could have been implemented by now with no need to get any new laws passed or any use of valuable Parliamentary time. The JCC’s repeated offers to assist and advise in any working party for that purpose have also been ignored. The implementation of those 90 recommendations would have greatly reduced the criminal theft and waste of Public Money with which we are now beset. The failure to implement those recommendations is probably the largest single ingredient in the continuing decline in our ‘morality in public affairs‘.
Even worse is the steadfast refusal to reinstate the Uff Enquiry website. There is no way to tell if the website was deliberately removed or if there was a mundane technical reason for its disappearance. What we do know for sure is that there is solid official resistance to even offer a sensible explanation for the continuing refusal to reinstate.
It is critical for us to learn from our errors if we are to avoid a repetition and it is therefore important that we excavate those lessons so that they can be considered. To fail to do that is to thwart the entire move to a ‘developed nation status’. Our nation’s primary information needs to be properly documented and published so that anyone who wants to learn the lessons can do so.
The evidence in the Uff Enquiry offers a deep, unprecedented insight into the state of affairs in our country and the conduct of our substantial business dealings. That information is first-class primary source material for research and teaching in critical fields such as Government, Finance, Engineering, Surveying, Planning, Economics, Sciences, Law and Management. We cannot become a ‘learning society‘ if first-class primary information is suppressed. It does not matter how many universities we build or how many pupils we certificate, the ignorance of our own primary information will frustrate the drive to a higher level of education.
On 26 March 2013, then Minister Moore replied to the JCC –
“…It is inappropriate to make available the evidence revealed in the Uff Enquiry at this time as they may ground future criminal enquiry…”
On 23 May, we invited the Minister to reconsider her position, pointing out that –
“…To quote from the final remarks of the Enquiry Chairman, Professor John Uff QC Ph.D. – “…Finally we would like to thank the Press for their continued and expert coverage of the Enquiry; and the public for their unflagging interest in the proceedings. There are few countries in the world where an Enquiry into the construction industry could fill a prime time television slot for over a year. For me it has been a unique experience and I am personally honoured to have had the opportunity, as I hope, to serve the interests of the construction industry and the people of Trinidad & Tobago…” There can therefore be no doubt that the entire proceedings of the Uff Enquiry were published widely…”
This is the Minister of Justice, claiming that our request to reinstate this invaluable website, would amount to ‘making the evidence available‘. Evidence which had been widely televised, all day long and rebroadcast at night. I tell you.
The Minister promised to revert to us by the end of June 2013, but that reply never came.
So now UDECOTT’s stance is clearer, given the overarching policy of the State on these critical matters of public concern. I maintain that UDECOTT did not conform to the 17th Uff recommendation in its involvement in the Couva Children’s Hospital. That recommendation 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.” (emphasis mine)
But the current concern goes beyond the ongoing Couva Children’s Hospital, since UDECOTT is playing a leading role in the Invader’s Bay development. In December 2013, UDECOTT published full-page Requests for Proposals in the newspapers for Designers for Infrastructure Development of Invader’s Bay. UDECOTT is seeking to hire a designer for the infrastructure element of this large-scale development which means that the selected designers would have to conform to the client’s instructions in preparing their plans. The client’s instructions would have to be based on some kind of concept, proposal or outline. That raises the obvious questions of when were these concepts, proposals or outlines conceived and by whom? Most importantly, who approved these? We know for sure that there has been no consultation with the public, user groups or other interest groups.
So, we are witness to yet another episode of large-scale development being undertaken, in this case by UDECOTT, with none of the promised consultation.
In response to a full page UDECOTT advert (embedded below) in response to my article “Invader’s Bay Review” (excerpted above), also published in the Business Express.
From: Afra Raymond <firstname.lastname@example.org>
Date: Sat, Dec 14, 2013 at 9:30 AM
Subject: Letter to the Editor – UDECOTT’s failure to consult
To: Editors of daily newspapers. Email addresses withheld
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.”
The decisive part is ‘before decisions are made.‘
The Peoples Partnership has not implemented the Uff Report’s 90 recommendations as promised and there has never been an explanation of that failure or refusal to carry out those critical measures. The sod was turned for the Couva Children’s Hospital on 2nd March 2012, at which time the project type, location, size, budget and procurement arrangements were all announced for the first time. Plainly, no consultation took place before those decisions were made, which was the point made in my 11th December article ‘Invader’s Bay Review’.
UDECOTT has now issued full-page newspaper advertisements to attempt to label my irrefutable observation as ‘reckless and damaging’ and so on. Yet another waste of public money, given that UDECOTT provided no examples of consultation before the key decisions were made on this huge project.
That pattern of secret development is inimical to our country’s progress. We must be properly consulted before decisions are made. We strongly criticised the last administration for that pattern of development and we will continue to make the same point. We must become a learning society.
There now needs to be a complete and open review of the Invader’s Bay matter. That is imperative if the public interest is to be safeguarded.
The catalogue of irregular dealings and improper procurement practice at Invader’s Bay has now grown so that we are facing an important moment of decision. At this point there has been no announcement as to an award of contract or grant of any lease, so the threshold of binding legal agreement has not been crossed. In investment language, we are at the ‘inflection point’, which is where the prudent investor has to make a decision to continue or abandon a course of action.
This is the exact moment we should be calling for an open review of this major public project, before any binding commitments are made.
The Commission of Enquiry is an often-used device to probe into matters of serious public concern. In relation to construction and property development, we have had recent CoEs into the Piarco Airport Project, UDECOTT, Land-Date and the Biche School Project, to name a few.
The public has a sceptical attitude to these Commissions, since they never seem bring the desired results in terms of arrests of prominent public officials or disgorgement of stolen monies. Many people dismiss CoEs as ‘talk shops’ set up to enrich lawyers, but I do not dismiss them as effective ways to serve the public interest. Despite the imperfections of the Enquiry process, including the fact that key witnesses can refuse to appear without incurring any serious penalties, there are real benefits. The main one, in my view is that a CoE allows us in the public to learn about major matters of public concern which would likely have remained hidden.
That is the reason we need to retain this process so that the wrongdoing of the past can be exposed, so that we can have the possibility of avoiding those in the future. The weak point of the process is that it always takes place after the crimes have been committed, so during the Bernard Enquiry we were learning about the already-constructed Piarco Airport Terminal. Too late to prevent the massive theft and waste of Public Money.
That is why we need to consider a shift in our approach to the question of enquiries into questionable public projects, since the process is a reactive one, completely unable to stem wrongdoing.
At the ‘inflection point’ now occupied by the Invader’s Bay project, we have an opportunity to examine this large-scale development before any significant expenditure of Public Money so that we can detect and deter wrongdoing. I am not yet settled in my mind as to exactly what type of review is best here, but whatever happens, it must be independent and committed to publication of its findings.
Some of the main issues which such an Enquiry or Review should examine are –
Consultation – The complete lack of consultation in this large-scale development proposal for our capital city would be addressed by the process. The land is vested in UDECOTT via a lease and that organisation has repeatedly claimed to have implemented the recommendations of the Uff Report. The 17th of those recommendations states “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”. Given the swiftness with which the Couva Children’s Hospital – which is being executed via UDECOTT – emerged in March 2012, we know for sure that those recommendations are not being observed by UDECOTT. Even looking beyond UDECOTT and its conflicting ‘versions’, we can see the contradictory actions of the Ministry of Planning & Sustainable Development supporting a public consultation process at King’s Wharf in San Fernando, yet refusing to hold public consultations on Invader’s Bay in Port-of-Spain.
Environmental Concerns – The Invader’s Bay lands are extensive waterfront holdings in State property. They proper development of those lands must take full account of drainage issues and the impact on the environment, including the marine-life issues arising in any waterfront project. I have before me the EMA’s letter of 14 November, which confirms that there have been no requests or Certificate of Environmental Clearance (CEC) applications for the Invader’s Bay lands. In addition, the EMA records provided to me show that the most recent application for a CEC at Invader’s Bay was in January 2007. It is not possible to obtain planning permission without EMA approval, so there are other implications of the lack of these approvals.;
There is no link between the RFP and the other three strategic plans for the POS area. That violates the fundamental notion of strategic planning in that existing plans are ignored for no given reason. Piecemeal planning and development is detrimental to the Public Interest. So, who was the author of that RFP and who in the Ministry of Planning approved such a document?;
The Request for Proposals (RFP) published by the Ministry of Planning in August 2011 seeking Design-Build proposals for the development of these lands specified an entirely inadequate 6 weeks for submissions. Whose recommendation was it to truncate the development process in this fashion?;
The evaluation rules were only published after the closing-date for the tenders, so how did the proposers know what criteria to meet? That late publication is in breach of proper tender procedure, so the entire process is voidable and therefore illegal.
Legal Instructions and advice – Also critical to any review process would be the details of the legal advice sought and obtained at various stages of this process. The Ministry is adopting a bizarre, secretive stance in which the advice is claimed to vindicate their actions ‘thus far’, yet that legal advice is being suppressed. The JCC has taken legal action to challenge that unacceptable secrecy in this most public matter.;
Infrastructure – The 2014 Budget discloses a $50M allocation for infrastructure at Invader’s Bay, which of course is only a small part of this substantial cost. In the absence of environmental or planning approvals, it is difficult to establish the cost for proposals of this nature, since a design cannot be completed.
Allegations of squatting – Finally, we turn to one of the most vexed phrases in our lexicon where land is concerned. The issue of squatting, which is the unauthorised occupation of land not in your ownership. From the sequence of images shown below, we can trace some elementary conclusions:
the first (left) is a map/plan, which uses a dotted line to illustrate the boundary between the Invader’s Bay property and adjoining Port Authority lands to the north…the physical boundary is occupied by a watercourse/ravine and those ‘Port’ lands are occupied by MovieTowne/PriceSmart, a green play park and the Marriott/BHP-Billiton building
the second (middle image) is an aerial photo which shows the Invader’s Bay land bare of vegetation
the third (image at the base) is an aerial photo which shows the Invader’s Bay land re-vegetated with mangrove and what appears to be a bare excision, immediately south of MovieTowne’s western carpark…that is a gravel-paved area, which is south of the watercourse I mentioned earlier…it is accessed via a basic bridge from the said MovieTowne carpark.
(Click on images to expand)
2. Invader’s Bay cleared of vegetation.
3. Invader’s Bay regrown with area cut out for use.
I am asking whether MovieTowne has a lease, licence or tenancy agreement to occupy those lands. Does MovieTowne pay any rent, licence fee or charge of any sort for the use and occupation of those lands? What action is UDECOTT taking on this? What action is the Commissioner of State Lands taking on this? It would be unacceptable for an entity in breach of State policy to benefit from the decisions of the State. I hope that is not what we are seeing here.
We need a full, independent and open review of this Invader’s Bay matter. Do you agree?
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
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 theother place…let us deconstruct it –
Meaning of the phrase
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.
Afra Raymond is on ‘Time to Face the Facts‘ to discuss Corruption with host Jerry George…
This is a live telecast on Sunday 26th May 2013 – today being the 50th anniversary of the establishment of Africa Liberation Day, for those of us who still remember…- from 7pm to 9pm on Cable TV as CaribVision or streaming on the internet via their FaceBook page –https://www.facebook.com/timetofacethefactsshow?fref=ts