The Uff Bluff

Jearlean John. Photo courtesy Trinidad Guardian — Jearlean John, Chairman UDeCOTT

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.

moore-volney 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)

Procurement_Notic 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.

Hence my title – The Uff Bluff.

Letter to the Editor – UDECOTT’s failure to consult response

udecott-complaint 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 <afraraymond@gmail.com>
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.

Afra Raymond
POS

View this document on Scribd

Invader’s Bay Review

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:
1. 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
2. the second (middle image) is an aerial photo which shows the Invader’s Bay land bare of vegetation
3. 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?

AUDIO: Heritage Radio Interview: Public Procurement, etc. – 04 December 2013

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

Programme Date: Wednesday, 04 December 2013
Programme Length: 1:23:27

Invader’s Bay part 3: MORE Invaders Bay Ingredients

I closed last week’s article by restating my view that all the ingredients for corruption were present at Invader’s Bay.

What are those ingredients?

Here is my list –

Extensive public assets coming onto the market, in turbid circumstances. Those assets can include property, concessions, contracts and jobs;
Questions of access to the gatekeepers – in these scenarios, some people will have unbelievable access to the decision-makers;
Conflicting and confusing versions of the project or proposal. The confusion is as persistent as it is deliberate, a part of the tangled web.
Blatant double-standards and lying is the norm in these situations;
Apart from ceremonial fluff, such as sod-turnings and ribbon-cuttings, there is no intention whatsoever to give any proper public account or statement of intentions. True transparency is evaded like taxes;
Professional Civil Servants who are unable or unwilling to insist on the maintenance of minimum standards;

Extensive Public Assets

These lands are estimated to be worth in excess of $1.2Bn at today’s priced, that means the unimproved value. Although the lands are reclaimed, a significant amount would have to be spent on infrastructure to make the property ‘shovel-ready’ for development.

As I noted in the first in this series, there were conflicting claims on this aspect, with the selected developers claiming extensive infrastructure expenses as a way to reduce what they would pay for the land. There were no estimates given for the developers’ cost of infrastructure, but I noted that the National Budget for 2014 had specified, at pg 89 of the Public Sector Investment Program, that there would be publicly-funded ‘Infrastructure Development’ at Invader’s Bay.

I have been assisted by some of the professionals in the very Ministry of Planning & Sustainable Development in identifying that item as being a $50M allocation for 2014. The actual works are unspecified, so it is difficult to be certain what is included. It certainly seems a modest sum given the size and peculiar challenges posed by the Invader’s Bay property.

In addition to the obvious public asset of the actual property, readers should note that assets in this context can include concessions. In this context that can mean maritime & docking concessions as well as tax concessions, so we will have to maintain full vigilance to safeguard the public interest.

As a first position, all the details of the overall agreements must be published for public consideration at the earliest opportunity. This is no minor point, since really huge sums of wealth can be transferred from public hands to private interests if proper transparency is not ensured. Just remember that in June this year while the President of the Peoples Republic of China was here there was the signing of a Government to Government Agreement. The JCC has lodged many strong objections to those agreements. How many readers will remember that there was an important agreement signed with respect to the Pitch Lake at that time?

To cite a press report –

…According to a release from Lake Asphalt of Trinidad and Tobago (1978) Ltd, the signing ceremony of a Memorandum of Understanding and a Confidentiality Agreement with Beijing Oriental Yuhong Waterproofing Technology Co Ltd of the People’s Republic of China is scheduled to take place at the Hyatt Regency, Port of Spain…

So, faced with a Freedom of Information Act which ensures disclosure, the new trend is to wrap-up the details in yet another layer of secrecy. We need to be alert to that trend. After all, this is the same Ministry which claims to have legal advice confirming that its actions conform to the Central Tenders Board Act, yet steadfastly refuse to publish that advice.

Access to the gatekeepers

One of the two successful proposers has been the MovieTowne principal, Derek Chin, whose confidence has been striking.
According to Mr. Chin, in an extensive interview –

…Chin has met with the Prime Minister and many government ministers seeking approval for this project.
Before Christmas 2010, he had a meeting with the Transport Minister Jack Warner, Foreign Affairs Minister Suruj Rambachan, and other ministers, at the Prime Minister’s Office. They all supported his plans. “I have been lobbying the Government for a year now, even before the elections. I sent in the preliminary sketches about the concept; I met 19 Cabinet ministers over the last six months. The next minister I am meeting is Bhoe Tewarie, Minister of Planning. He wants to see me. I also met with Jearlean John, Udecott chairman. She also loves it, but that was three to four months ago…

That interview was given in early July 2011, which is over one month before the Request for Proposals was published by the Ministry of Planning & Sustainable Development at the end of August. I tell you.

Conflicting and confusing versions

So, to return to the legal opinions, we have this swirling set of stories.

To date, Minister Tewarie has insisted that the project has been removed from UDeCoTT’s portfolio and placed within the Ministry of Planning. He claims that Cabinet approved this in 2011 and also insists that there is no tender process at Invader’s Bay. Of course it is impossible for the Ministry to proceed to invite tenders for anything without following the Central Tenders Board Act.

The first legal advice I saw was clear that there is indeed a tender process at work here and that the CTB Act ought to have been followed. Obviously, that conclusion did not ‘fit the script’, so an escape hatch had to be fashioned. Shortly thereafter another opinion was submitted by Sir Fenton Ramsahoye SC, on an entirely different set of assumptions which made UDeCoTT the central enabling agency in the entire scheme.

The approach endorsed by the Ramsahoye opinion flatly contradicts the version being advanced by Minister Tewarie.

That is the deep, intentional confusion being encouraged by public officials in this matter.

Blatant double-standards and lying

So, let us start with the role of the Ministry of Planning & Sustainable Development on the Invader’s Bay project. How does that Ministry reconcile its active role in seeking public views on the King’s Wharf project in San Fernando with its silence on Invader’s Bay in POS?

These are blatant double-standards of the worst kind. One can scarcely believe that there are professional civil servants who could condone this reckless and underhanded approach to national development. But there we have it.

When is the Ministry of Planning & Sustainable Development going to host a public consultation on Invader’s Bay? That is now an inescapable requirement. Sooner rather than later.

But that is not all. No, not at all.

This administration campaigned on the findings of the Uff Enquiry and made several public promises to implement the 91 recommendations of the Uff Report. Such was the importance of the matter in the political agenda that it formed the first item of the very first post-Cabinet Press Briefing of the Peoples Partnership administration on 1st July 2010. That is a broken promise, since those Uff recommendations have not been adopted and the JCC’s many attempts to offer our assistance to achieve that have all been rejected.

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…

There has been no consultation at all on the Invader’s Bay proposals. Quite frankly, apart from rumours and conflicting press reports, I do not really know exactly what is going to be built or where or even when.

According to the iconic American jurist Louis Brandeis, speaking on eradicating corruption –

‘Sunlight is the best Disinfectant’

Invader’s Bay part 2: All the Ingredients for Bobol…

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 –

CONSULTATION?

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 the other place…let us deconstruct it –

*Phrase*	*Meaning of the phrase*
‘In reality‘	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.

Invader’s Bay payday?

invadersbay-sml Invader’s Bay has re-emerged from the shadows via PNM Senator Faris Al-Rawi’s budget contribution on Monday 23 September 2013 (pp. 168-175). The twists and turns in this controversial proposed scheme are detailed at JCC’s webpage.

Invader’s Bay is a 70-acre parcel of reclaimed State land off the Audrey Jeffers Highway – just south of PriceSmart & MovieTowne – in the western part of Port-of-Spain. Its value was estimated by the State in 2011 to be in excess of $1.2Bn, so these are prime development lands, possessing these attributes –

Water, Electricity and all urban services are readily available;
Flat/gently-sloping terrain;
Direct access to Audrey Jeffers Highway;
Waterfront location.

Before proceeding to the latest revelations, it is important to restate the main objections raised by the JCC and others with respect to this proposed development –

The Request for Proposals (RFP) was published by the Ministry of Planning in August 2011 seeking Design-Build proposals for the development of these lands and specifying an entirely inadequate 6 weeks for submissions;
There has been no public consultation at all, so the public has not been involved in this, the largest proposed development in our capital in living memory;
The RFP was silent as to the other three, extant strategic plans for the POS area, all paid for with Public Money. Given that the RFP was published by the Ministry of Planning, that is a tragic irony, to say the least;
EIA – The RFP is silent as to the requirement for an Environmental Impact Assessment in a development of this scale;
The proposals were to be evaluated against the “Invader’s Bay Development Matrix and Criteria Description”, which was only published after the closing-date for submissions. That is a clear breach of proper tender procedure, which renders the entire process voidable and therefore illegal.

Continue reading “Invader’s Bay payday?” →

Property Matters – Spending and Savings

Discussion is revolving around the country’s earnings from our energy resources and the likely size of the next year’s budget, expected to be delivered in early October.

Given the fact that our energy resources are reported to be declining in both quantity and value, it is very important that we make best use of that stream of resources to both sustain the existing arrangements and create a new series of industries to replace those declining earnings.

In my view, our focus in this critical transitional period has to be on making best use of those limited tax dollars. Although that is an objective on which we can assume broad consensus, there seems to me to be far too little discussion on the ways in which that can be achieved.

When we consider that most of the capital expenditure in the country takes place via the State and its agencies, it is clear that proper control of that expenditure is key to making the transition for our society. The other parts of State expenditure are recurrent, such as salaries and rents.

The growth of corruption in State expenditure is a clear danger to good order and national development. White-Collar crime, as it is sometimes called, is a growth industry because there is almost zero chance of being detected or punished and huge rewards.

The danger to good order is the fact that merit has a declining role in the way State spending decisions are made. It is clear that other factors have become dominant – things like friends, family and political affiliation are now well-understood to be the ingredients of success in getting work from the State. That is the case for all political administrations so far in our country, but it must change if we are to make the transition to a sustainable economy in which different values and income sources take the lead.

The budget of the present financial year is the largest in our country’s history and it is true that the major part of that expenditure could be classed as exceptional items, having to deal with settling large debts of State Enterprises and the huge CL Financial bailout payments. The point here is that those huge expenses arose in situations with a distinct lack of transparency and accountability, from the lack of accounts at UDECOTT and HDC to the naked corruption of the CL Financial bailout, there is a pattern.

If there is no transparency and no accountability, there will be corruption and that is inescapable.

Expenditure of Public money – Accountability – Transparency = CORRUPTION

Public Procurement
Public Procurement refers to any expenditure or receipt of public money, which is money due to, or ultimately payable by, the State. That definition covers all the Ministries and State agencies as well as modern arrangements such as BOLT, PPP, concessions and so on. In the PP’s first budget, there were disclosed plans to spend almost $14.0Bn in the capital program of the Ministries and State Agencies. We need a proper Public Procurement system to manage these vast sums of money.

It is for this reason that the People’s Partnership commitment to implementing a new and effective Public Procurement system is to be welcomed. The JCC and its partners – the Chamber of Commerce, the Manufacturers’ Association and the Transparency Institute – have submitted a draft Bill for consideration of the Joint Select Committee established by Parliament.

Finance Minister Winston Dookeran made good on the PP’s pre-election promise to lay in Parliament the new Public Procurement proposals within one month of the election.

The level of political support for this initiative has been encouraging, but there is the issue of priorities to confront in this matter.

I am referring to the fact that the second part of the PP commitment to a new and effective Public Procurement system was that it was to have taken effect on the anniversary of the election.

That target has been missed and the work of the Joint Select Committee has been preserved so that it can proceed when the Parliament re-opens at the Waterfront.

The challenge we have to confront is the race to implement public projects in a manner which reminds me of the phrase I had coined for the last administration – ‘Project Fever’, like a new strain of political dengue.

The need to stimulate economic activity is something everyone appreciates and the perceived competition between Ministers is becoming part of the new reality. Provided that there are effective local content provisions, the more projects the country is doing, means more work for our professionals, contractors, workforce and suppliers. No one would argue against an increase in economic activity.

The problem is that, in the absence of proper controls, those short-term imperatives can lead directly to the dire long-term consequences which I referred to earlier. The State now has to spend immense sums to clear up debts which arose during an earlier spending frenzy, with operatives, who would have all said at the time that this or that project was essential.

These frenzied moments of activity are the correct place for the application of real leadership in terms of the national priorities, particularly in relation to the issue of expenditure. I am calling on Finance Minister Dookeran to make this issue of controlling expenditure a number-one priority in this budget.

Given that the ongoing flow of projects is strong and constant, a proposed program would look like this –

New Public Procurement policy – Minister Dookeran must make this new system an absolute priority with a firm commitment to have the new framework made law by the end of this session of Parliament, which is in December. That is an indispensable part of building a new economy going forward and it would definitely be a manifestation of New Politics.
Embargo new projects – In relation to projects which are not yet at the stage of Requests for Proposals, there needs to be an embargo until the new Public Procurement system is in place. There will be appeals that the struggle is for economic stimulus over proper process, but those must be dismissed. There is no way you can get to the right place after making a wrong turn. No way. Everybody knows that. Expediency taking precedence over principle has cost our country enormously, both in cash terms and lost opportunity.
Projects ‘in the pipeline’ – Projects which are already at the stage of Requests for Proposals must conform with the principles underlying the new Public Procurement proposals – Transparency, Accountability and Value for Money.

Without proper control over expenditure, we will continue to lurch from crisis to crisis. We need to stabilize the economy and restore the importance of merit in our public decision-making.

Property Matters – Taking Stock

As part of this pre-budget series, I am going to ‘take stock’ of some recent, significant happenings in relevant areas.

Given the unstable situation in relation to the State and its operations, many examples of which have been set out in previous ‘Property Matters’ columns, it is very important that a critical stance be maintained. That said, it is also important that any progress be properly recorded and acknowledged.

The notable items were –

Housing Development Corporation (HDC)

I was very pleased to read of the success HDC was having in collecting the serious rent arrears owed by its tenants, reportedly in excess of $240M. Of course this is not the first time there has been an effort to rectify this situation, so hopefully this will be a sustained program as it is vital that housing be treated with proper responsibility. That responsibility would extend from the quality of the designs and construction, the treatment of contractors and suppliers all the way to housing policies which respond to the needs of the needy.

Last week, there was a report in this newspaper that the Housing and Environment Minister, Dr. Roodal Moonilal, disclosed a new housing policy. According to that report, the new policy will favour distribution of serviced lots, with foundation slabs, over the provision of new homes. I have been calling for a review of our housing policy for some time now, so it was very disappointing to read that Cabinet had recently approved this important new policy without some formal process of dialogue or seeking wider views, much less a thorough examination of the shortcomings of the 2002 policy. Yes, a new housing policy was sorely needed, but there are solid benefits to wider dialogue.

Housing is too important an element of our Welfare State to ever become solely a creature of Cabinet, whatever the credentials of the current crop of Ministers.

This leads directly into my point about the poor flow of basic information, which can be detrimental to the best intentions. The 2002 housing policy disappeared from the internet about 6 months ago, but despite several written requests I have had no success in having those links restored, for whatever reason. The new housing policy is also not available online. In contrast, last month the Ministry of Finance issued a revised State Enterprises Performance Monitoring Manual and that is available online, together with the 2008 Manual it replaced.

Building code

Dr. the Honourable Roodal Moonilal, Minister of Housing and Environment

The impending new Building Code is to be welcomed, having been developed in collaboration with key stakeholders. There needs to be a solid commitment by all parties to establishing proper enforcement of those critical standards. The Building Code will cover important areas such as earthquake and fire hazards as well as other quality issues.

The initiative is being piloted by Dr. Roodal Moonilal, Minister of Housing and the Environment. UDECOTT and the HDC both form part of his responsibilities, so that is a good fit. We will have to be vigilant to ensure that all State construction conforms to the new standards.

I can scarcely believe that the very Minister who understands the importance of collaborating with stakeholders on the new National Building Code, would state a week earlier that the new Housing Policy had been agreed by Cabinet, with no visible attempt at consultation. Incredible, but true.

A Culture of Consequence

I have consistently stated that the absence of consequence is inimical to any development and that consequence has to be restored to a proper place if we are to progress. Up to last Thursday, 11 August, I stated at a public meeting that I was unaware of any government in this country taking decisive action against its own appointees in the State Enterprises. The pattern has been one of charging people from the last political administration in what almost always looks like revenge.

Dawn Annamunthodo, former chairman of the National Schools Dietary Services Ltd. Photo © Trinidad and Tobago Guardian

The Sunday Guardian headline of 14 August ‘Cabinet fires Chairman of School-feeding Programme’ was as welcome as it was surprising. It was reported that the Cabinet had taken decisive action to fire a Chairman who had been appointed about 6 months before and that is a positive step, the first time any government in this country has done that, as far as I am aware.

According to that exclusive story, the fired Chairwoman of the National Schools Dietary Services Ltd (NSDSL)—Dawn Annamunthodo – had obtained extensive and expensive security guards for herself, due to some alleged death threats. There were also details of what seemed to be deceptive attempts by that individual to become a signatory to the bank accounts of that State-owned company. If those reports are true, there are two serious implications –

Firstly, it is extremely unlikely that this is the first time that this individual was involved in acts of that kind. Grown people do not just change their behaviour in a few months’ time, we all know that. My point being that this episode calls into question the screening which is carried out in relation to these appointments. Whatever screening processes now exist, will definitely have to be made stronger, together with ongoing reviews of Board performance.

Given that the Prime Minister is widely reported to have approved the Chairpersons of State Boards, that screening process needs to be reviewed urgently so as to preserve the integrity of that office.

Secondly, this individual is reported to have attempted to convince Republic Bank’s Ellerslie Plaza branch to make her a signatory and that matter must be promptly investigated by the Fraud Squad, with charges to follow if those allegations are true. It is an echo of the point I made here last week about a dutiful police officer allowing a motorist with a defective vehicle to just drive-off after a ticket is issued. Not good enough, if we are serious about road-safety. We have to restore a Culture of Consequence if White-Collar Crime is to be challenged.

But, even though no money appears to have been stolen in that School-Feeding episode, the saddest part was the bold-faced question that individual asked the Guardian reporter, when invited to give a comment

How did you get hold of those documents? Those are state documents. These questions are state business.

It reminded me very much of the response of Jewan Ramcharitar, former PriceWaterhouseCoopers partner, who suddenly resigned as eTeck Chairman almost a month ago. That entire affair remains mysterious, with Stephen Cadiz, the line Minister, stating that it was due to a ‘difference of opinion’ and the departed Chairman reportedly stating –

I am actually working on a project in the public service arena on a full-time basis and my time at eTeck is eroding the time and attention I pay to that.

“Just what that project is, he won’t say.”

I wonder if Ramcharitar would have found that dismissive answer to be acceptable when he was a partner at PWC? Probably not, yet we are continually beset by these evasive attitudes in public affairs. We need to hold our leaders to a high standard.

The latest twist is the sudden resignation of George Nicholas as Chairman of Caribbean Airlines and the opaque statement by the Minister of Transport, Devant Maharaj – “…Yes. I can confirm this. I am in receipt of his letter but I cannot say anything more…”

In the three cases, bare-faced conflation of State Business with Business which is private, personal or confidential.

Good steps are to be recognized and applauded, but we must always strive for better. We need to continue onward and upward. It would be good to have a statement from the Minister of Foreign Affairs and Communications as to the governments’ commitment to a progressive policy in these important matters. The Housing policy needs to be published for comment and we also need to have a clear statement as to whether there can be any such thing as a confidential state policy.

Confidential State Policy may seem like an oxymoron, but readers will be aware of the reluctance of the Education Facilities Company Limited to publish its new Confidentiality Policy. I don’t want to say refusal, but when this budget season is over we will be continuing to examine those EFCL operations.

Property Matters – State Enterprise Accounts

State Enterprise Performance Monitoring Manual
In the next few weeks, this column will cover some of the issues which are likely to have a bearing on the 2012 Budget.

In my view the State and its Agencies must perform in an exemplary fashion if we are to progress. A good example is worth a thousand words.

At page 22 of the 2010-2011 budget statement, the Minister of Finance said –

…Mr. Speaker, no coherent, co-ordinated planning or strategy for state enterprises exists. As a result we have begun to rationalise the state enterprises, including the special purpose companies, which will incorporate a new accountability system that goes beyond the presently operating company ordinances. It is these loopholes in public accountability that resulted in the UdeCOTT scandal. This must never again happen in Trinidad and Tobago…

The Ministry of Finance has now published a new State Enterprises Performance Monitoring Manual 2011, it is over three times longer than the previous edition, so it will be something to consider in weeks to come.

Certainly, there are stricter requirements in relation to the filing of accounts – at pg 30 of the 2011 guidelines –

3.2.5 AUDITED FINANCIAL STATEMENTS

State Enterprises are required to submit the following:

Audited Financial Statements (2 originals and 120 copies) to the Minister of Finance within four (4) months of their financial year end. These reports are to be laid in Parliament and subsequently submitted to the Public Accounts and Enterprises Committee for consideration;

Copies of their Management letters issued by Statutory Auditors…

At pg 16 of the 2008 edition –

1.3.10 Publishing of Financial Statements by State Enterprises

Government has agreed that State Enterprises be required to publish in at least one (1) major daily newspaper a summary of the audited financial statements within four (4) months to the end of their financial year and a summary of the unaudited half-yearly statements within two (2) months of the mid-year date.

Such summary statements must be in accordance with the requirements of the Securities Industry Act, 1995.

The new guidelines appear to be stricter, but the requirement to publish to the press seems to have been removed.

There are swirling issues on this –

No accounts for years – As I have pointed out before, some of the largest State Enterprises have published no accounts for years. UDECOTT and NHA/HDC are just two examples of this flagrant breach of the shareholders’ instructions as set out above. In the case of HDC, there is a greater concern in my view, since sections 18, 19 and 20 of the HDC Act require the audited accounts to be produced and published. Anyhow you try to spin it, those are terrible signs. For a private company to have no accounts, for even a few months, is indicative of poor performance at the very least. No accounts for years is unacceptable. One can only wonder how clearly could anyone plan if basic information is being obscured in this fashion. We expect better from the chiefs of these State Enterprises and certainly we expect better from the Peoples’ Partnership. In his preamble to the 2010-2011 budget, Minister Dookeran said –

…We must at all times remember who we work for. We must make Government work for the people. As our Prime Minister always says: serve the people, serve the people, serve the people…

Serious debts outstanding – There are continuing reports, despite some efforts, that contractors, consultants and suppliers are owed substantial monies by State Enterprises for extended periods. That has a disastrous effect on our local economy both on an immediate tangible level and in terms of the more subjective element of confidence.
Ambitious new projects continue to be announced, even as the basic accounts are incomplete and substantial bills remain unpaid.

Apart from the evident confusion, at the very highest levels of the State and Government, the unacceptable part is that there is not even an attempt to explain what is the hold-up or what areas of the accounts remain unresolved. The few times anyone in authority has attempted to explain the delays in those accounts, it has been a model of vagueness and ambiguity. That uncommunicative behaviour does not augur well. These State Enterprises are not building a wartime bunker or a new spy satellite, only new homes and offices.

But there is more, according to S. 99 (1) of the Companies Act 1995

every Director of a company shall in exercising his powers and discharging his duties act honestly and in good faith with a view to the best interests of the company; and
exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.

Those provisions make mismanagement of a company an offence. It is literally impossible to manage or direct the affairs of a multi-billion dollar company in the absence of audited accounts. So there must be serious concerns as to how the Directors of those State Enterprises without accounts could have properly discharged their obligations under S. 99 (1).

SEC logo Apart from these points, there is now the fact that the SEC has made Orders in respect of Contraventions of the Securities Industry Act 1995 and the Securities Industry Bye-Laws 1997. Those Orders are in relation to the failure of these huge State-owned Enterprises to publish their accounts –

19th March 2010 against HDC, with fines totalling $121,000 – see http://www.ttsec.org.tt/content/pub100326.pdf.
15th June 2011 against UDECOTT, with fines totalling $120,000 – see http://www.ttsec.org.tt/content/Order-for-settlement-re-UDECOTT.pdf.
25th July 2011 against HDC, with fines totalling $400,000 – see http://www.ttsec.org.tt/content/Order-for-settlement-re-Trinidad-and-Tobago-Housing-Development-Corporation.pdf.

I was pleased to see the SEC taking this firm action against these offending State Enterprises, it is an important and necessary intervention. I am not at all sure what, if any, ongoing penalties are being applied. If there are no ongoing punishments or fines, this important regulator needs to take a tougher stand. It is simply not good enough in my view for the regulator to levy these fines and allow the companies to carry on with ‘business as usual‘. That would be like a dutiful policeman ticketing a motorist for smooth tires, no seatbelt and no headlights – issuing the ticket and then letting that motorist drive off. The SEC needs to consider heavy daily fines and banning orders against Directors of these companies in breach of the law, if such do not already exist.

The era of irresponsibility in high office needs to be brought to a close. The role of the Treasury in supporting this grossly irresponsible behaviour is questionable. The silence on the missing accounts is intolerable. The chapter of getting away with it needs to be ended.

Expenditure of Public money – Accountability – Transparency = CORRUPTION

AfraRaymond.net

A Thinking Man's Weblog

Tag: UDECOTT