First round tenders were flawed

The Integrity Commission appointed the Canadian Forensic Accountant, Mr Bashir Rahemtulla in October 2004. In pursuit of his investigations, Mr. Rahemtulla carried out interviews inter alia with Udecott and Mr. John Mair.

13.22. While this Inquiry was proceeding in secret, a further public Commission of Inquiry was established by HE The President on March 5, 2005. The Inquiry was precipitated by allegations made in Parliament concerning the illegal removal of materials from the Scarborough Hospital site. The Terms of Reference of the Commission were to enquire into:

(i) Allegations concerning the removal of materials etc, by NH from the Scarborough Hospital Site to a private development site called Landate of which the owner was the wife of Dr Rowley, Mrs Clark-Rowley.

(ii) The procurement processes and award of all Contracts to NH and Warner Construction.

13.23. The enquiry was carried out with speed and the Report of the Commissioners published on August 8 2005. The Commission considered evidence by the Rev Barrington Thomas, a man with seven convictions, who was plainly not believed by the Commissioners. His evidence was that Dr Rowley had boasted that he had given the C and E Contract to NH, in return for which the Landdate Project would be carried out for free. Other potential and relevant witnesses failed to appear, having left the jurisdiction. The Commission rejected the allegations against Dr Rowley on the balance of the evidence, but found it necessary to criticise his behaviour.

13.24. While the Landate Inquiry was on-going, Dr Rowley remained in ignorance of the C and E Inquiry, which continued its proceedings in secret. The Report of that Inquiry (which had been underway for some two years) was sent to the Director of Public Prosecutions in August 2006. It appears that the Report found the conduct of Dr Rowley to be such as to justify consideration of criminal proceedings. The matter only came to Dr Rowley’s notice in December 2006, when it appeared in the Press.

13.25. Dr Rowley promptly applied to the Court and on April 27 2007 obtained orders (with the consent of the Integrity Commission) that:

(i) The decision to make and publish the Report was illegal and ultra vires and that the Report itself was null and void.

(ii) That the failure of the Integrity Commission to give Dr Rowley notice or allow him to be heard was ultra vires and in breach of natural justice.

The Court duly quashed the Report and ordered the Integrity Commission to give Dr Rowley the opportunity to be heard. The Commission subsequently found there to be no basis to suspect that Dr Rowley had acted improperly and sent him a letter of exoneration dated February 1, 2008.

13.26. It is appropriate here to refer to yet another strand in the saga of the investigations following the C and E tenders. In the course of the hearing before the Court, evidence was given by Mr Bashir Rahemtulla to the effect that during his (secret) investigation at Udecott, he was provided with files which in his opinion had been culled. This was revealed by Mr Ri1ey.

Mr Rahentulla’s evidence was as follows:

“Whilst Udecott did make some of its files accessible to me, I noted that several of these files appeared to have been culled and that certain information was not present. Udecott also denied me access to some documents, such as certain Board Minutes, on the basis that Udecott’s legal officer was of the view that they were unrelated to this matter. “

13.27. Mr Riley presented this as evidence of Udecott’s general lack of transparency. Ms Rampual responded to these accusations and made the following points:

(a) Udecott had co-operated with the Integrity Commission over the Landate Inquiry in August 2006.

(b) Between August 2006 and September 2007 Udecott met the Commission’s Investigators on numerous occasions and provided them with files and information.

( c) On no occasion were culled files provided nor was any concern expressed at the time to Udecott that proper access was not being granted to Udecott’s material.

13.28. Ms Rampual said that she first saw articles reporting the evidence of Mr Rahemtulla on September 27 2007,his evidence having been given in the High Court on September 26, 2007. Ms Rampual wrote to the Integrity Commission on September 28.

She continued to deny that any culled files were provided or that Udecott did not co-operate with the Commission. Udecott points out in its Final Submissions that the Integrity Commission did not accede to a request to compel disclosure of Udecott’s documents, with the inference that the Integrity Commission was satisfied that Udecott had provided all relevant documents.

Initial Conclusions

13.29. It is appropriate at this point to review the long saga of the C and E Building, which commenced in October 2002 and effectively represented the entry of Udecott into large scale development projects. The tendering process extended to January 2004; the construction of the building, which should have taken 26 months, is still ongoing (after more than 5 years); and the repercussions arising from the abortive tender process in 2002/3, as well as the accusations and recriminations involving Dr Rowley, Mr Calder Hart and many other individuals, remain a topic of hot debate in Trinidad. We seek to draw conclusions relevant to procurement issues in the Public Construction Sector at the end of this report. At this stage, however, it is appropriate to reflect on the extraordinary and unfolding saga presented at the Inquiry, much of which had been in circulation in some form for months or years beforehand.

13.30. It is to be observed that the analysis of the first round of tenders was plainly flawed in a number of ways. It was technically flawed for the reasons set out in two advices tendered by Mrs Deborah Peak at the request of Mr Calder Hart.

However, it was also flawed in more fundamental respects in that the various reviews carried out produced patently inconsistent conclusions. While Dr Rowley confirmed that no actual corruption had taken place, there was evidence suggesting that particular individuals involved in the process might be subject to certain pre-dispositions as to where the project was to be awarded. It may be that in a small country, where so many people are required to hold significant appointments, this is inevitable. If so, this points to the clear need to establish rigorously objective standards and rules to be followed when assessing tenders.

13.31. In terms of the detail, it is surprising that the tender evaluation process should have proceeded, on two occasions, before advice was taken on what turned out to be fundamental legal issues which undermined much of the work that had already been carried out. The correctness of Mrs. Peak’s advice has not been questioned. Plainly it should have been taken earlier, on both occasions. Udecott, in its Final Submissions, stated that there was no good reason to seek legal advice at any earlier stage. However, the Commissioners consider that the advice, which was plainly relevant to the tender evaluation process, should have been taken earlier. Further, while the Commissioners refrain from expressing any view on the serious differences between Mr. Outridge and Mr. Mair, we believe that the decision to instruct QES, in an attempt to break the log jam, was, in retrospect, mistaken; and the fact that Mr. Outridge produced a second report which was not disclosed by Mr. Calder Hart when it clearly should have been, simply creates unnecessary suspicion.

13.32. Udecott responded to both the foregoing points of criticism III its Final Submission contending that the decision to instruct QES was sensible and reasonable. The difficulty was that, as noted above, QES was instructed late and in circumstances where their review was bound to be somewhat superficial; and given the acceptance that the tender process was “flawed from the beginning,” the exercise was never going to resolve the differences which had emerged. With regard to Mr. Hart’s non-disclosure of the second report, while Udecott seeks to explain it as involving no impropriety, the Commissioners remain of the view that the selective use of such a document is bound to engender suspicion, not just in the minds of those predisposed to find questionable motives.

13.33. With regard to Dr Rowley, it is not within the remit of the Commissioners to comment on the ways in which Government Ministers conduct their business. Nor do we feel called upon to do more than simply record the different versions of meetings and conversations, which differed more in their supposed implications then in the facts asserted. A matter which was central to the dealings between Dr Rowley and Mr Calder Hart was whether, as Dr Rowley believed, the Minister was entitled to instruct Udecott or whether, as Mr Calder Hart believed, Udecott could regard itself as a private company to be run by its Board as they saw fit. The issue is more fully analysed elsewhere in this report. It is clear that a Minister may instruct Udecott as its agent for a particular project, whether pursuant to a written contract or not. However, to instruct Udecott on the manner in which it performs its procurement function involves more complex legal issues on which we decline to comment. There is clearly a case for clarifying the power of Ministers to avoid disputes of this sort in the future.

13.34. Having concluded that a number of individual mistakes were made which led to the decision to abort the first round of tendering in August 2003, we can accept the summary put forward by Mr. Calder Hart in his letter of August 27 2003 to Dr Rowley, that the mistakes had occurred in an “attempt to correct the system on the run so to speak”. The question will remain what lessons Mr Calder Hart and Udecott drew from these experiences.

13.35. As noted above, the second round of tendering appears to have passed off with no drama and with little evidence of the “standardised’ tender procedure referred to in Mr Calder Hart’s letter. It appears to be the case that from 2004 onwards Udecott sought to keep the process of tendering and tender evaluation under more close control so as to avoid a repeat of the C and E experience, including the use of prequalification of tendering companies. Whatever the motivation it remains vital that Udecott’s tender rules as well as their application should achieve a minimum level of transparency, and should demonstrate to the construction industry in Trinidad and Tobago and the public at large that the tender process is fundamentally fair and properly administered.

13.36. The Codicil to this drama, represented by the parallel references to the Integrity Commission and the eventual striking down of the secret investigation of Dr. Rowley’s part in the C and E Building award, is regrettable and has rebounded disastrously on the Integrity Commission itself. No doubt there are lessons to be learnt here but they are not matters for this Inquiry.

14. MLA Tower and Sunway

14.1. The Legal Affairs (“LA”) Tower is the third major building within the Govermnent Campus Plaza (GCP) which comprises nine packages, including four tower blocks. These were the Customs and Excise (C and E) building (PK1), the Board of Inland Revenue (“BIR”) tower (PK3) , the Ministry of Legal Affairs (MLA) tower (PK6) and the Ministry of Social Development (MSD) building (PK9). The Project also included a substantial multi-storey car park (PK2) situated on the opposite side of Richmond Street and linked both above and below street level by pedestrian and service access (the Mechanical Plant serving all the buildings is also situated within the multi-storey car park). The designation of the remaining packages is set out in Section 23 below.

14.2. The GCP was intended to be constructed as a series of sequenced and inter-related projects with common professional teams but separate contractors and contracts for the nine packages. The common professional team comprised Design Collaborative Limited as Architects, Tumer Alpha Limited (TAL) as Project Manager and Udecott as Developer and Project Manager. As already noted, the C and E Building was the first to be tendered. The decision to abort the first round of tendering in August 2003 eventually led to a delay of over 12 months, with the Construction Contract eventually being signed in June 2004, with a retrospective contract start date of May 17 2004 and a completion period of 22 months. Once the initial problems with the tender and evaluation procedures had been overcome, the rest of the GCP Project followed in sequence, the commencement dates and completion periods for the major elements being as follows:

14.3. The GCP, albeit still incomplete at the date of this Report, is now a familiar feature of

the Port-of-Spain skyline and adds considerable variety and interest to it. The C and E building (PIG) and the MSD building (PK9) are each of 10 storeys and rectangular in plan, with their longer axes parallel to Richmond Street. The BIR Tower (PK3) and the MLA Tower (PK6) are of very similar design, each of 23 storeys and located at opposite ends of the site. Between the four buildings is an open Plaza providing access and various leisure facilities, including a large LED screen.

14.4. Thus, after placing the contract for the C and E Building the remaining elements of the Project proved relatively uncontroversial, save for overall questions of delay and additional cost, which are dealt with in Section 23 below; and save for the decision to award the Contract for the MLA Tower to Sunway Construction Limited, which is now the subject of this section.