–as saga over non-delivery of multi-million-dollar motion scales gains momentum

ATTORNEY-General and Minister of Legal Affairs, Anil Nandlall, S.C., on Thursday began legal proceedings against NevPro Realization Limited of Jamaica, and Former Minister of Public Infrastructure, David Patterson, essentially over a breach of contract that was entered into almost five years ago.

The matter at reference has to do with the non-delivery of three mobile motion scales bought by the A Partnership for National Unity + Alliance For Change (APNU+AFC) government for a whopping $72.264 million back in December 2016.

In his statements of claim filed at the Demerara High Court on Thursday, the AG has also named former Permanent Secretary in the Ministry of Public Infrastructure, Balraj Balram, and the ministry’s former Head of the Special Projects Unit, Lawrence Mentis as respondents.

On behalf of the State, Nandlall is seeking $50M in general damages from the Jamaican company for loss and damage suffered as a result of the breach of the contract, dated December 6, 2016, for the supply and delivery of three scales.
He is also claiming for liquidated damages in the sum of $7.245M, calculated at ten per cent of the contract price for breach of contract by the said company.

Alternatively, the AG is also seeking an Order of Restitution against the company for all monies received as full payment under the contract which was breached.

In the case of Patterson, Balram and Mentis, Nandlall is claiming damages of in excess of $50M, for loss and damage suffered as a result of negligence to the State of Guyana, and an additional $50M for the loss and damages suffered as the result of the misfeasance in public office committed by the trio.

Again, as a result of the trio’s alleged misuse, misapplication and improper disposal of public money, contrary to the Fiscal Management and Accountability Act, Cap 73:02, Laws of Guyana, Minister Nandlall is further seeking an additional $50M for loss and damage suffered by the State because of their actions.

Lastly, the AG is seeking $50M each from the respondents for aggravated and exemplary damages.

According to the AG in his application, he has a duty in law to preserve the patrimony of Guyana by recovering land, money or other property that would be a financial loss to the State and the people of Guyana, if found to have been taken or occasioned in, or by the contravention of the laws of Guyana.

APNU+AFC CAMPAIGN MANAGER
In the court documents seen by this newspaper, Minister Nandlall is alleging that the director of the Jamaican company was the campaign manager of the A Partnership for National Unity+ Alliance for Change (APNU+AFC) for the 2015 General and Regional Elections, and was closely associated with the AFC, the political party of which Patterson is a founding member.

Against the foregoing backdrop, Nandlall is contending that for the Fiscal Year 2016, the sum of $631.7M was allocated, through public funding, to the Ministry of Public Infrastructure, under Project Code 1902800: Sub-Head – Equipment, for the purchase of road-building equipment for the Special Projects Unit of the then Ministry of Public Infrastructure.

According to the application, “On the 1st day of November, 2016, the Ministry invited suppliers, through the National Competitive Bidding and Restricted Tendering method of procurement, to bid for the procurement of fourteen (14) different Lots of specified goods, which included three (3) Mettler Toledo Weight-In-Motion Scales.”

The AG also disclosed in his application that El Dorado Trading, a Guyanese company, had also submitted a bid for $10.2M for the supply and delivery of the said Motion Scales, but was allegedly disqualified from the tender procedure on account of its submission of a fraudulent manufacturer’s authorisation for one of the said lots.

He said that on December 6, 2016, rather than inviting suppliers again, by way of tender, Balram entered into a contract with NevPro Realization Limited for the supply and delivery of the said motion scales. Then, seven days later, he reportedly sent a letter to the former Chairman of the National Procurement and Tender Administration (NPTA), Berkeley Wickham, requesting “a waiver of the Tender Board Procedures, and for the purchase, through sole-sourcing” of the scales from the Jamaican company.

According to Minister Nandlall, Balram did not advance or satisfy any of the conditions set out in the Procurement Act as a reason for the request to use the single-source procurement procedure for the supply and delivery of the scales in his letter.

Subsequently, an undated Memorandum by the former Minister of Finance, Winston Jordan, was submitted to Cabinet for its examination and “No Objection” in relation to the said request.

FALSE CLAIM

As it relates to the memorandum, Nandlall said the document falsely stated that no bids were received for the motion scales, although a bid was received by El Dorado Trading. Among other things, Nandlall said that the memorandum in which the basis of Single-Source Procurement Procedure is being sought included the urgent need for the item, although no catastrophic event had occurred to occasion that need as specified in section 28(c) of the Procurement Act.

According to Nandlall, on December 29, 2016, before Cabinet approved the grant of its No-Objection to facilitate the award of the contract to the company, in breach of the Procurement Act, an advance payment certificate was approved and certified by Balram and Mentis for US$172, 500, representing a fifty per cent (50%) advance payment under the terms of the contract.
Balram and Mentis would subsequently write the Commissioner-General of the Guyana Revenue Authority, Godfrey Statia, requesting the waiver of duties and taxes by falsely stating that the request was being made in accordance with a contract signed December 29, 2016 between the Ministry of Public Infrastructure and Massy Industries for the Supply and Delivery of the Motion Scales.

The next day, again ex post facto, Cabinet considered the memorandum and approved the grant of its No objection to the waiver of tender procedures to facilitate the award of the contract through the Single-Source Procurement Procedure for the supply of the Motion Scales from the foreign company.

According to Nandlall, on January 4, 2017, inexplicably but corruptly, and without receipt of the scales, a final payment certificate for US$172, 500, representing the final payment for the delivery of the motion scales was approved and certified by Balram and Mentis again.

PAYMENT CERTIFICATE

The said payment certificate was reportedly approved and certified by Balram and Mentis six days after the advance certificate was granted to the company, and 29 days after the signing of the said contract to supply and deliver the scales.

The AG is contending that for the entirety of 2017, there is no evidence that any steps, whatsoever, were taken by Patterson, Balram and Mentis to pursue any form of communication with NevPro Realization Limited to ensure delivery of the scales.

In short, the AG said, the alacrity to make full and final payment to the company for the sales “was not in the faintest way replicated in efforts to ensure delivery of that which was paid for”.

On March 15, 2018, more than one year after the 90-day period for delivery, six packages purporting to be the scales were shipped to Guyana by the company.

“To date, only three (3) out of the six (6) packages were found at the Laparkan Trading Ltd’s storage bond in Georgetown. None of the packages was opened to verify that the contents of the packages actually were the Motion Scales, or components of the Motion Scales.” the AG said in his application.