Property Matters: In-Dependence? Part 4

cancelled-hdc-contractThe previous article opened with news of the unexpected and welcome cancellation of the huge HDC/CGGC contract to design and build 5,000 new apartments.

Sad to say, but this bitter, bizarre HDC/CGGC contract and its reported cancellation requires that my Season of Reflection closes with further, more blatant, counterfactuals.  Last week I quipped about the amazing scenes we were witnessing in this episode, but the more recent statements denote a sharp descent.

This recent barrage was an epic of Carefully Crafted Confusion.

For example, the important issue of whether the Attorney General advised on the contract has been serially evaded.

Here are Acting PM Imbert’s replies to Parliament on Friday 13th September 2019

“...Mr. Indarsingh: Thank you, Mr. Deputy Speaker. Can the Acting Prime Minister state whether this contract for over half a billion dollars was vetted by the Attorney General of Trinidad and Tobago?

Mr. Deputy Speaker: I will not entertain that question at this time, Member…”

(pg 10)

“…Mr. Rodney Charles (Naparima): Thank you, Mr. Deputy Speaker. Can the Acting Prime Minister state whether any due diligence by the Office of the Attorney General was undertaken prior to the signing of the Framework Agreement between the China Gezhouba Group International Engineering Company and the Housing Development Corporation on July 13, 2018?

The Acting Prime Minister and Minister of Finance (Hon. Colm Imbert): Mr. Deputy Speaker, I am advised that the framework agreement did not require the Attorney General to give an opinion on the contract.

Mr. Charles: Thank you, Mr. Deputy Speaker. Is it the norm for state enterprises to enter into contracts in the order of this magnitude without reference to oversight by either Cabinet or the Attorney General?…

Hon. C. Imbert: Mr. Deputy Speaker, firstly, the Housing Development Corporation is a statutory authority, it is not a state enterprise. It has its own rules according to statute, and the Housing Development Corporation does have the authority to determine its own contractual affairs…”

(pg 15)

In the first case, the Deputy Speaker refused the question and in the second, the Acting PM simply said that the AG’s advice was not required.  As yet, we have no idea if that advice was sought and provided.  Did the AG advise?  Yes or no?

Another aspect of this is that, as a Statutory Corporation, HDC is governed by its Act, which states at clause 12  –

“…12. The Minister may give to the Board directions in writing of a specific or general nature to be followed in the performance of its functions or the exercise of its powers under this Act, with which the Board shall comply…”

Clearly, HDC is legally bound to comply with any lawful instructions from its line Minister, so any statement to imply its independence is simply false and misleading.

Then PM Rowley’s statements on Monday 16th September 2019 were intended to shield HDC Chairman, Newman George.

…We didn’t put Newman George to run the HDC…” is a perfect counterfactual, since the HDC Board is appointed by Cabinet, of which the PM is Chairman.

On 3 December 2015, the government news service advised that ‘Housing Minister appoints new HDC Board’, inclusive of its Chairman, Newman George.

I was intrigued by these parts of Dr Rowley’s statement –

“…The PM said Cabinet was unhappy with some aspects of the contract, including a conflict between the plan to sell apartments (which people may not be able to afford) and Cabinet’s desire to build rental units. He also lamented the old deal would have required the HDC to get help from several ministries and may have been too accommodating to a foreign entity…”

Could it be that we will see a move towards affordability and rental units?

Dispute Resolution

At pg 17, clause 1.4 states that –

…The contract shall be governed by Law of Republic of Trinidad and Tobago…

Apart from the awkward phrasing, that is sound.

At pg 34, sub-clause 20.6 states that –

“…Any dispute, controversy or claim arising out of or relating to this contract…shall be referred to and finally resolved by Arbitration under the rules of Arbitration of the International Chamber of Commerce…the arbitration award shall be final and binding upon both Parties…the place of Arbitration shall be London, England…the arbitration shall be conducted in British English…”

So far so good, but there is more.

The contract contained two payment guarantees.  The first, in which the HDC guaranteed the full sum due to CGGC, and in the second of which HDC guarantees the retention held in respect of defects etc.  Both those guarantees specify –

“…This guarantee shall be governed by the laws of the People’s Republic of China and shall be subject to the Uniform Rules for Demand Guarantees, published as No 758 by the International Chamber of Commerce…”

Given that our Public Money was to fund this huge project and support these guarantees, it is  unacceptable that the governing law was not our own. Quite apart from the issue of the governing law, it is striking that these solid guarantees are seldom, if ever, enjoyed by local contractors.

ADDENDUM: Who signed what?

The Framework Agreement of 13 July 2018 was signed by HDC’s Managing Director, Brent Lyons (pg 11).

brent lyons sign

The Contract Agreement of 17 May 2019 was signed by HDC’s Chairman, Newman George (pg 6).

newman-george-sign

Property Matters – In-Dependence? Part three

cancelled-hdc-contractThe previous article opened with news of the unexpected and welcome cancellation of the huge HDC/CGGC contract to design and build 5,000 new apartments.

The barrage of stories on this issue in the last week has left one phrase ringing in my mind, VS Naipaul’s sardonic wit in his ‘independence novel’, A House for Mr Biswas – “…amazing scenes were witnessed when…”.

Two essential elements of the Season of Reflection are shown in the addenda –

  1. the affordability question, as well as
  2. the role of local professionals and contractors.

Continue reading “Property Matters – In-Dependence? Part three”

Property Matters – In-Dependence? Part two

On Thursday, 5 September 2019, the PM announced at the post-Cabinet media briefing that the large-scale HDC contract with China Gezhouba Group Company (CGGC) for 5,000 new apartments was now ‘cancelled’-

…That contract was reviewed extensively by the Cabinet and it has been stopped. HDC has been instructed to go back out to tender because there were some parts of that contract that did not meet Cabinet’s acceptance and approval, both structurally and legalistically. That contract has been stopped.

So, Cabinet has reviewed this contract (after its execution!) and has now cancelled it so as to re-tender and proceed in accordance with proper standards.  Sad to say, a straight reading does not count for much in these matters.  This is where we are, that is all.

The previous article explained the several serious aspects which were wrong with that HDC contract.  In my view the entire contract was wrong, even if no laws were broken and all the necessary protocols were observed.  ‘rong like a Crix Biscuit and this article will explain exactly how. Continue reading “Property Matters – In-Dependence? Part two”

Property Matters – In-Dependence?

 

“Local contractors and consultants who compete with foreign companies should be provided with the same or equivalent benefits as enjoyed by those foreign companies and should be protected from unfair competition through matters such as soft loans.”
—The Uff Report‘s 43rd recommendation, on the benefits awarded to foreign contractors.

 

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This article will delve into the large-scale program for 5,000 new apartments to be built for HDC by China Gezhouba Group International Engineering Co Ltd (CGGC). I am writing this on the night before our 57th anniversary of Independence and my reflections are bittersweet, dwelling on those old discussions about how, for many countries in the Global South, Independence was only symbolised as a spectacle. We used to call it Flag and Anthem Independence, all form with little substance.

As the fight for transparency in our Public Business is waged against those officials who are hostile to the truth, my mind runs on the widespread recent discussion on the proper performance of the National Anthem; the re-emergence of the colonial offense of Sedition; the bizarre, backward, dress-codes to enter public facilities (no sleeveless, no shorts, no cap or hat, no this and none of that) and so much else in the same vein. At the same time as the endless discussions on these issues, we have a cultivated, enforced silence on the huge deals and arrangements within which our Public Assets are bargained. Continue reading “Property Matters – In-Dependence?”

VIDEO: Interview on The Morning Brew on new Chinese housing contract

CNC3 LogoAfra Raymond sits with Hema Ramkissoon on the Morning Brew to discuss the newly revealed public-private agreement to finance and build 5,000 apartment units in Port of Spain and San Fernando with China Gezhouba Group International Engineering Co Ltd (CGGC). Opinions on whether this is a good deal or not. Video courtesy CNC3 Television.

Programme Length: 00:10:40
Programme Date: Wednesday, 22 May 2019