Gaskin mounts second court challenge against Amaila Falls road contract

Jun 29, 2010 News

Ramon Gaskin has moved, once again, to the High Court to challenge for a second time to quash Government’s decision to award a $15M USD contract to Synergy Holdings Inc. for the design and building of a road from Linden to Amaila Falls to facilitate the construction of a planned 230 KV transmission line.
The motion was filed on the grounds that the decision and award were made in breach and disregard of articles 212W and 212FF of the constitution, the Procurement Act 2003 Act No. 8, and cites the Minister of Public Works and National Industrial and Commercial Investments Limited (NICIL) as the respondents.
Gaskin, on June 10, through his attorneys Senior Counsel Rex McKay, Fitz Peters, Neil Boston and Christopher Ram, had previously moved to the court for an order directed to the two respondents to show cause why a writ of certiorari should not be issued to quash the decision made by the government to award the Synergy Holdings Inc. the contract.
They had also sought an order prohibiting the Minister of Public Works and Communication and the Executive Director of NICIL from taking any step or further steps in connection with the said contract awarded to Synergy Holdings Inc.
Gaskin had contended that the Government, the Ministry of Public Works and Communication, and NICIL did not conduct the tender process for the Amaila Falls project in accordance with and under the mandatory provisions laid down in the Procurement Act and regulations, and was in breach of the constitutional intendment for transparency and fairness.
That matter was heard by Acting Chief Justice Ian Chang on June 15 and June 16, who refused to grant the order that he sought on several grounds.
The Chief Justice had refused to grant the initial order, making reference to, among other things, that the applicant’s primary motive for making the application appeared to have been a genuine disapproval of the personality of the successful bidder.
The Chief Justice had pointed out that Section 30 of the Procurement Act reveals nothing that prohibits a procuring entity from authorising an agency such as NICIL, to act on its behalf.
According to Gaskin, the most recent motion is an application for ‘similar purpose’ which in effect is not an appeal of the chief justice’s decision on the initial motion.
As advised by his lawyers, he is contending that the Chief Justice’s decision was erroneous in point of law in as much as he “failed to exercise his discretion according to judicial principles, and by finding that the government of Guyana had the authority to carry out the functions of a ‘procuring entity’ under the Procurement Act, the learned Chief Justice was wrongly reading words into the Procurement Act in breach of the basic principle of statutory interpretation.”
In his affidavit in support of the second motion, Gaskin said that the Chief Justice also found that in exercising its functions as a ‘procuring entity’ the government had authority to delegate functions to NICIL in disregard of the provisions of Section 27 of the Interpretation and General Clauses act chap. 2:01.
Gaskin is maintaining that the failure of the government to appoint a Public Procurement Commission as mandated by article 212-W of the constitution infects and interferes with the proper functioning of the Procurement Act.
He is further contending that the government, being desirous of constructing a hydropower station at Amaila Falls in Region Eight, unlawfully and in breach of Section 30 of the Act, authorised NICIL to invite ‘requests for a proposal for a design and build road and transmission line project from Georgetown to Amaila Falls’.
According to Gaskin, on April 20, last, the Ministry of Finance issued a press release explaining that “the contract for the job is between the government of Guyana via the Ministry of Public Works and Synergy Holdings Inc.” and not NICIL.
This recent court move could likely affect the commencement date for the project which is July 15.
However, there appears to be no move on the part of the contractor to commence on that date, since machinery to facilitate the project have reportedly not yet arrived in Guyana.

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Gaskin mounts second court challenge against Amaila Falls road contract

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