Source: Kaieteur News

After almost two years without one, Guyana has reconstituted the Legal Practitioners Committee (LPC).

The committee is critical for persons who want to make complaints against lawyers who they believe would have breached regulations or acted in a manner that is unethical to the profession.

According to a statement of the Bar Association of Guyana, the appointments were made by Chancellor (ag.), Justice Yonette Cummings-Edwards, of 12 attorneys-at-law as members.

The appointments came after consultations with the Bar Association, it was disclosed.
There have been a number of statements over the non-functioning of the LPC.
The twelve appointed members of the committee are Robin Stoby, S.C.; Rafiq Khan, S.C.; Emily Dodson; Andrew Pollard; Teni Housty; Tracy Gibson; Moenudin Mc Doom; Narendra Singh; Devindra Kissoon; Dionne McCammon; Mandisa Breedy and Faye Barker-Meredith.

The Attorney General, Basil Williams, and the Solicitor General, Kim Kyte-Thomas are ex officio members of the committee.

The members of the Committee will hold office for three years.
According to the Bar Association, the committee will sit in two divisions of seven members each. Division 1 will be chaired by Stoby, S.C. while Division 2 will be headed by Pollard.

The LPC is the body established under the Legal Practitioners Act, Chapter 4:01 which is charged with hearing and determining complaints against attorneys-at-law. The committee has disciplinary powers.

In brief comments to the committee yesterday at the Court of Appeal, attended also by Kamal Ramkarran, President of the Bar Association and Pauline Chase, Secretary of the Bar Association, Justice Cummings-Edwards encouraged the lawyers to make recommendations for the strengthening of disciplinary powers.

Persons who feel aggrieved against an attorney-at-law can lodge a complaint with the Secretary of the LPC, Jewel Campbell, at the Court of Appeal in Kingston, Georgetown.

Source: Kaieteur News

In a rare and historic legal move, a lawsuit has been filed by activist Ramon Gaskin to challenge the constitutional validity of the State Assets Recovery Act (SARA) recently assented to, in May 2017. Gaskin is represented by  commercial lawyer, Devindra Kissoon.
In the Fixed Date Application, Kissoon cited 37 challenges to the Act, stating that it is unconstitutional, unlawful and void.

It would be recalled that following the May 2015 general elections, the Coalition Government announced that it was establishing the State Assets Recovery Unit (SARU) to go after properties and resources stolen from the people. However, SARU’s power was not covered by any laws, and the administration then moved to introduce legislation.
It was assented to in May, last, however there have been misgivings about the new laws, with some opining that too much power would be in the hands of the State Assets Recovery Agency.

According to the court documents filed, the challenges are centred on a number of key issues, including interfering with the legal professional privilege and the possible violating of a citizen’s right to privacy, by allowing the Director of the State Assets Recovery Agency to access confidential financial information from banks and the Guyana Revenue Authority (GRA) without a court order.

Gaskin is arguing that the Act does not give a citizen equal protection before the law and there are no requirement to have reasonable grounds to commence investigations.
It is also being argued that the Act violates the doctrine of separation of powers, since it directs the Court how to act in certain circumstances, and even allows ex-parte orders to be granted without procedural safeguards to protect citizen’s interests, or without providing that the orders be limited in duration.

The ex-parte orders seemed to be a major bone of contention, as it is felt that a citizen would not be in a position to cross-examine an officer about the contents of his affidavit to show its unreliability or otherwise.

Another issue that is being raised, Gaskin said, is that the Act also permits proceedings to be filed and heard in secrecy, in violation of Section 144(9) of the Constitution, which requires all civil court matters to be heard in public.

This, in effect, will reverse the burden of proof in criminal proceedings, interfering with a citizen’s right to the presumption of innocence and his/her right to silence and his constitution right of protection against self-incrimination.

Also being challenged is Parliament’s “impermissible” powers of appointment of the staff of the State Assets Recovery Agency; and that of the Minister of Public Security to appoint policemen in violation of Article 212(1) of the Constitution.

Gaskin is also challenging the Act “unlawfully” affords the Director and Staff of SARA absolute immunity for all actions and restricts the amount of damages that can be recovered against them for their conduct.

The Act in its present form has been met by huge criticism from various public interest groups, including the Guyana Human Rights Association (GHRA) and the Private Sector Commission.

For example, the GHRA has previously stated that the “The Director of the State Assets Recovery Agency is effectively a political commissar exercising enormous powers”.
The PSC has noted that the Act “provides all encompassing investigative and surveillance powers to the Director and staff of the agency to snoop around into private accounts and financial records of citizens to determine what assets of the state were lost and need to be recovered. This is a complete affront to the fundamental rights of citizens, and if such powers are granted, they can be used to marginalize, suppress and take advantage of vulnerable members of the population through political intimidation.”

Gaskin, who is also represented by attorney Christopher Ram, in his affidavit noted with concern, various comments made by the State Assets Recovery Agency’s head, Aubrey Retemyer, prior to the implementation of the Act, as a clear indication of bias on the part of official.

The case has been filed against the Attorney General, the State Assets Recovery Agency and the Director of the State Assets Recovery Agency.

The matter is set to continue on August 3, 2017.

Chambers and Partners has ranked  LHC founding partner, Devindra Kissoon, as one of the leading lawyers in Guyana. Chambers states “Sources applaud Devindra Kissoon of London House Chambers for his assured handling of high-value matters. He is active both in transactional and litigation work. Recent highlights include defending the Guyana Revenue Authority in a USD13 million constitutional challenge.”

Source: Stabroek News

-rejected bidder says contractor unfairly selected

The government and the Guyana Power and Light Inc (GPL) are being asked to defend their decision to award a $4.6B contract to a Chinese group for the rehabilitation of the power company’s low and medium voltage distribution network, which one of the bidders says was “improperly” done.

Acting Chief Justice Yonette Cummings-Edwards has ordered the government and GPL to show why the High Court should not hear the application by rejected bidders Fix-It Depot, which is contending that the contract was awarded to China National Machinery Import and Export/China Sinogy Electric Engineer-ing Co. Ltd “in flagrant breach” of the Procure-ment Act and the bid invitation as it did not meet the tender evaluation criteria.

In a supporting affidavit for a Notice of Motion filed by his attorney Devindra Kissoon, Paul James, of Fix-It Depot, also contends that his company’s bid, which was the lowest, was unfairly rejected and that GPL set out a vague criteria for the award of the contract and even then did not apply it.

As a result of James’ application, Justice Cummings-Edwards has ordered that the Ministry of Public Infrastructure, Senior Minister David Patterson, Permanent Secretary Balraj Balram, GPL, and the National Procurement and Tender Administration Board (NPTAB) and their representatives show why an order should not be issued for the court to review the decision and quash the rejection of the Fix-It-Depot’s bid as well as the award of the contract to the Chinese group.

The case comes up for hearing again tomorrow in Chambers.

The rehabilitation of 328 km of GPL’s low and medium voltage network, including the procurement and installation of smart meters throughout the network, is part of the Power Utility Upgrade Pro-gramme, which is intended to enhance the company’s operational efficiency. It is being funded through an Inter-American Develop-ment Bank (IDB) loan.
The engineer’s estimate for the project was $3.8B, while Fix-It-Depot’s bid was $3.5B. According to James, based on the criteria in the Procurement Act and in the IDB Procurement Policy, not only did his firm, in a joint venture with Colombian civil engineer Enrique Lourido Caicedo, submit the lowest evaluated tender but it had also submitted the lowest evaluated cost.

“The decision to award the contract to [the Chinese group] in no way benefits the public since the tendered sum is G$1,093,737,993 higher than the Applicant’s tender, that amount resulting in a waste of tax payers’ funds, being approximately 25% higher than the Engineer’s estimate…,” he says in his supporting affidavit, filed on January 31, 2017.
In the document, he explains that the invitation for bids (IFB) stipulated that in order to qualify for the award, bidders, among other things, would have to have experience as a prime contractor in the construction of at least the number of works of “a nature and complexity” equivalent to the planned works and that these should be at least 70% completed.

Further, he says that the Bid Data Sheet also stipulated a minimum qualifying criteria for bidders, including experience as a main contractor, with works at least 70% completed in a five-year period.

Financials

James notes that the Chinese group had submitted financials from the same subcontractor that he listed in his company’s tender, Ramoutar and Sons.

He contended too that Caribbean Engineering and Management Consultants Inc (CEMCO) issued a report to GPL on November, 2014, in which it criticised the Chinese group’s past performance and it specifically cited it for installing “non-conforming, non-compliant and defective equipment,” including corroding workstations throughout Guyana. He also cited the report’s conclusion on the selection of the Chinese group for the previous project, where CEMCO stated, “The firm selected for this substantial contract is not a construction company being mainly a trading company for the export of Chinese engineering products; it appears that pre-qualification or post-qualification assessments [were] either not done or adequately performed during the tendering or selection phase of the project. The Contractor engaged other Chinese firms to perform all aspects of the contracts save for purchasing of goods for the contract and even this aspect was not adequately performed, evidenced by shortage of materials and factory defects.”

He also cites another report to GPL, done by Powerline Wireless Communications and dated December 9, 2016, where it was found that effectiveness of the configuration and operation of the equipment installed by the Chinese group on seven GPL substations was not more than 49% for all.

As a result, James says it was clear that the Chinese group did not satisfy the evaluation criteria set out in the bid invitation, “it not having the experience to satisfy the bid requirements.” As a result, he argued that the decision to award the contract was “irrational, unlawful and a manifest error.”

According to James, GPL said Fix-It-Depot was disqualified as a bidder because it “did not satisfy evaluation criteria for experience in similar works of the nature and complexity to be undertaken” but no explanation was given as to how that decision was reached.
He says too that GPL also advised that the terms of the loan contract mandated that the IDB procurement policy be used, thereby “ousting” the terms and regulatory oversight of the Procurement Act.

Additionally, he says that an explanation for the rejection of his tender, given by the IDB’s Office of Institutional Integrity also ended up highlighting the flawed decision making process and the lack of specific evaluation criteria.

James maintains that the award violated the terms of the Procurement Act and argues that even if the IDB procurement policy prevails, GPL failed to follow its evaluation process and properly apply the evaluation criteria. He adds that he has been advised that the bid invitation failed to sufficiently disclose the contract award criteria and weightings in advance, which was a breach of both the IDB policy and the GPL’s duty “to fairness, equality and transparency,” thereby making the entire tender award process “flawed and illegal.”

James adds that based on information contained in the CEMCO report, had GPL followed the evaluation process and equally and fairly applied the evaluation criteria, it would not have awarded the contract to the Chinese group, which did not meet the minimum requirements for bidders.

As a result, James has asked the court to prohibit the respondents from concluding, entering into, or bringing into force, any contract with the Chinese group, to order that they reissue the bid invitation with clear criteria or to reconsider his bid on the basis that the award to the Chinese group was unlawful. He noted that up to January 18, 2017, no money had been advanced to the group and no contract was yet in force.