By Tamica Garnett
THE Ministry of Legal Affairs is considering legal action against the contractors and consultancy firms that were paid millions of dollars for the construction of the Yarrowkabra and St Rose’s High secondary schools, but never completed their work.

The ministry is also examining ways in which it can recover millions of dollars from the Trinidadian company which was overpaid for works on the St Rose’s High School, given the fact that certain aspects of the contract were never executed. The Guyana Chronicle understands that the Ministry of Education (MOE) is currently assessing how much and what type of work still remains to be done on the schools, so that the contracts could be re-tendered.

Speaking with the Guyana Chronicle on Monday, Attorney-General and Minister of Legal Affairs, Anil Nandlall, said that he is currently in the process of gathering the necessary information to put together the cases.
“We are currently in the process of receiving instructions from the staff of the Ministry of Education to prepare a case. Once we receive the instructions and we are clear on who are implicated in the breaches, all those persons would be placed before the court,” Nandlall said.

He further added: “The intention is to take the contractor to court. Courtney Benn for St Rose’s High School, and we are also examining the Yarrowkabra School with a view of instituting legal proceedings for a breach of contract and for monies received and works not done.”

It was early last month that the Attorney-General Chambers terminated the multimillion-dollar contracts for the construction of the Yarrowkabra Secondary School and the reconstruction of the St. Rose’s High School. And the recently released 2019 Auditor General (AG) Annual Report revealed that the contractors for both of the schools were already paid significant amounts of money, in some cases far exceeding the works done.

The $827.756 million contract for the Yarrowkabra Secondary, which is located just off the Linden Highway, was awarded in December 2019 to BK International Inc., and in January 2020, a mobilisation advance of $26.041 million was paid over. The work was scheduled for completion on March 12, 2021.

However, when the contract was terminated last month, in the letter issued, the Attorney-General noted that only five per cent of the work had been completed so far. In the letter, Nandlall had noted that the government would activate the provisions in the contract regarding the enforcement of ten per cent of the contract sum as liquidated damages, and the surrendering of the performance security as a result of the company’s fundamental breach of the contract.

In the case of St Rose’s High, the $352.71 million construction contract for that school was awarded to Courtney Benn Contracting Services Ltd. in 2018, with the contract signed in August of that year.

However, this was preceded by Trinidadian (TT) company- Bynoe, Rowe & Wiltshire- being awarded a US$134,790 (G$28M) consultancy contract for the design and supervision of construction of the school. The design phase was scheduled to conclude in July, 2018, while the supervision was dependent on a contract being awarded for construction. Notwithstanding the construction never commencing, according to the AG Report, the company has already been paid in full for both aspects.

Additionally, though the contract with Bynoe, Rowe & Wiltshire covered the soil investigations and design of the foundation for the school, the ministry is said to have deemed the foundation design done by the company as inadequate and paid two additional companies to provide services for redesigning the foundation for the school.
A second consultancy company was awarded a $6.575M contract, in January 2019, “to determine whether a deep foundation was required for the construction of the building”, while a third consultant was paid $432, 000 “for the calculation of loads of the building for redesigning the foundation”.

As it pertains to the possibility of recovering monies from the TT Company, Nandlall noted that “the process would be a little more protracted and technical but the possibility is there to recover from the TT Company.”
“First of all, we would have to enquire whether they have assets in Guyana. We can also serve the proceedings in Trinidad, and they would be bound by that legal process to attend the court in Guyana. If and when we obtain judgement we can execute the judgement against their assets in Guyana and TT,” he explained.

Meanwhile, the construction company has since been paid at least $95.434 million dollars, though from assessments, only nine per cent of the work is said to have been completed as of last month. Among the monies received by the contractor included an initial advance of $59.906 million and another advance in January, 2020 of $28.963M, with both Advance Payment Bonds having expired since March 2020 and none of the advance payments having been recovered.

However, according to the Auditor General’s report, despite the contract stipulating that the contractor used the advance payments exclusively to pay for plant, machinery, and equipment, materials and other expenses required directly for the execution of the contract, “it is unclear what this first advance payment was used for” as there has been no evidence of scope of works covering that amount.

“The ministry went ahead and paid the contractor a second advance. No evidence was seen whereby the contractor used the advance payments exclusively to pay for plant, machinery, and equipment, materials and other expenses required directly for the execution of the contract, as required under clause 34.2 of the General Conditions of contract,” the AG report noted.

In addition to the advances, the AG report also noted that: “the contractor was further paid the sums of $5.186M and $1.379M… followed by several small payments for security charges.”

As it pertains to the way forward now to have the construction of the schools completed, Minister of Education, Priya Manickchand noted that the situation is being assessed.

“We are in the process of measuring where we are because that’s a very technical process that has to be done. Where you measure what had been done and what remains to be done and that way you could go out to tender to do a public bid,” she told this newspaper.