Move to derail $15M hydro project contract fails
ACTING Chief Justice Mr. Ian Chang, S.C.,  yesterday declined to issue orders of Certiorari and Prohibition to Management Consultant Ramon Gaskin.
Gaskin had set out to prevent Government from awarding a $15M (US) contract to Synergy Holdings Inc., to design and build roads and stream/river crossings for Amaila Falls Hydro Project.
The application was refused.
The legal team representing the applicant includes Mr. Rex Mc Kay, S.C., Mr. Fitz L.R. Peters, Mr. Neil Boston and Mr. Christopher Ram.
According to the Chief Justice’s decision, on the 10th of June, 2010,  the applicant Ramon Gaskin, a management consultant, in his capacity as a  citizen of Guyana made the application by way of, Notice of Motion for the  following:-
(1)   An Order or Rule nisi of Certiorari  directed to the Minister of Public Works and Communication and the Executive Director of National  Industrial and Commercial Investments  Limited  (NICIL) to show cause why a Writ of Certiorari should  not be issued to bring up to the Honourable Court and quash the decision made by the Government through the Minister of Public Works and Communication and the Executive Director of NICIL to award SYNERGY HOLDINGS INC., a contract for US $15, 400,000 “to (i) design and build a road and necessary stream/river crossings from Linden to Amaila Falls, Region Eight including upgrades to some portions of the present  infrastructure as required by the Owner and (ii) to clear a  portion of a transmission line corridor to allow for the construction of a planned  230  K V transmission line and associated switchboards”.
On the  ground that the said decision and award were made in breach of and in disregard of Articles 212W to 212.1 of the Constitution, the Procurement Act 2003 (No. 8 of 2003) and the Regulations  made thereunder, in bad faith, without or in excess of  jurisdiction, is unconstitutional, unreasonable,  illegal, irrational, arbitrary, and capricious, procedurally improper,  ultra vires, null, void and of  no legal effect.
(2)   An Order or Rule nisi of Prohibition directed to the Minister of Public Works and the Executive Director of NICIL to show cause why an Order or Writ of Prohibition should not be issued  to the Minister of Public Works  and Communication and the Executive Director of NICIL  prohibiting them or either of them from taking any step or further steps in  connection with or in performance or pretended performance of the said contract awarded to SYNERGY HOLDINGS INC.  on the grounds that the said decision and award  were made in breach of and in disregard of Articles 212W to 212 :1 of the Constitution,  the Procurement Act 2003 (No. 8 of 2003) and the Regulations made thereunder, in bad faith, without or in excess of jurisdiction, is unconstitutional, unreasonable, illegal, irrational, arbitrary and capricious, procedurally improper, ultra vires, null, void and of no legal effect.”
Chief Justice Chang in his decision delivered yesterday, said among other things,  “The applicant Ramon Gaskin instituted these proceedings for the  prerogative writs of Certiorari and Prohibition, not as a person who has any direct or personal interest in the award of the contract to Synergy Holdings Inc., but merely as a citizen of Guyana.”
“Nevertheless, this court has no doubt that he did not lack the locus Standi to institute these proceedings since prerogative writ proceedings are always instituted  in the name of the sovereign and the sovereign always has the locus standi to have such writs issued against public  authorities  including the sovereign’s own Ministers acting or  threatening to act unlawfully or ultra vires,”  the Chief Justice said.
He added, “It is noteworthy that while the Notice of Motion alleges that the award of the contract was made by the Government  through the Minister of Public Works and Communication and the Executive Director of NICIL, the Affidavit in support of the Motion contains no evidence to support such an allegation.
“There is no evidence in the said Affidavit that the  evaluation of the tenders  was conducted by either of these officials. Nor does the said Affidavit contain any evidence to enable a finding  that the award  of the contract to Synergy Holdings Inc., was unreasonable or irrational in  the Wenesbury scene.
“Indeed, there appears to be a disconnect between the orders sought in the Notice of Motion and the Affidavit in support of the Motion which seems to focus primarily on the issue of procedural non-compliance.
“It must be noted that while the Affidavit in support of the Motion is pregnant with alleged breaches of procedure, it is somewhat lacking in allegations of fact in support of those procedural  breaches of law. The evidential deficiency in the affidavit evidence in support of the legal grounds for the application might have stemmed from the fact that the applicant  was never personally acquainted with what transpired in the conduct of the entire tendering process,” the CJ said.
He added: “The court is unable to persuade itself that the issue of writs of Certiorari and Prohibition would be for the public good in light of the importance  of the  Hydro electric project to the public welfare and development  of the country.
“The execution of the project by Synergy Holdings Inc., may warrant close monitoring but the need for such monitoring does not provide a sufficient basis for the exercise of the court’s discretion to issue the Orders or Rules nisi of Certiorari and Prohibition as prayed.
“Having regard to what has been started above, the court declines to issue the Orders or Rules nisi of Certiorari and Prohibition as prayed.  The application is accordingly refused,” the Chief Justice declared.