Source: Kaieteur News

A major court battle is brewing between the Local Government Ministry and construction giant, BK International, over the termination of a multi-million-dollar waste management contract at the Haags Bosch Landfill site, East Bank of Demerara.

Lawyers for BK International are asking the court to quash the, “unfair, improper and unreasonable” termination of the contract.

According to court documents, the company is claiming victimization on the part of the Government for failing to make payments to the company for work done.

The matter was called before Chief Justice (ag), Ian Chang, yesterday.

BK claims that it was issued a termination notice on February, 27, 2015. The contractor alleges that the Ministry has delayed payment since July 1, 2014 (and at one point for more than a year), while expecting it to process almost double the amount of garbage catered for in its contract.

BK also alleges that despite better performance than ever before, the Ministry’s Permanent Secretary, Collin Croal, nonetheless, served a termination notice, “incorrectly stating that BK has been late in completing the construction of the landfill, when in fact, it was the Ministry which keeps changing the landfill’s design pushing back the completion date.”

Chang granted a conditional order directed to Croal and Local Government Minister, Norman Whittaker, quashing the Ministry’s decision to terminate BK’s contract on the basis that the “decision to terminate and the corresponding termination notice was made and issued arbitrarily, unreasonably, irrationally, unlawfully, illegally, erroneously, in bad faith and in breach of the rules of natural justice”.

The court, based on BK’s arguments, believes that the termination was procedurally improper, unfair and unreasonable, sought to punish BK, and resulted in its unequal and unfair treatment.

Lawyers for BK also asked the court to grant orders preventing Croal and Minister Whittaker from taking any action in furtherance of the termination notice; interfering with BK’s equipment and personnel on the Haags Bosch Site, compelling the Ministry to adhere to the parties’ contract and appoint a dispute adjudication board to resolve the parties’ contract in accordance with the terms of said contract.

The company also made it clear in its court request, that in the interim, the Government should not be allowed to let the contract change hands by granting it to a third party.
BK’s affidavit supporting the application alleged that “the termination notice was unjustifiably issued by the Minister and/or the Permanent Secretary in the exercise of their public law power in egregious bad faith, as part and parcel of practice and pattern of conduct victimizing BK, the Minister and/or the Permanent Secretary abusing their power.”

The 28-page affidavit detailed BK’s allegations of the Minister’s alleged acts of victimization and bad faith. He claimed the Ministry “constantly delayed and changed design instructions of the Haags Bosch Landfill due to shoddy design work, expecting BK to immediately adapt to the Ministry’s ever-evolving needs, while at the same time pressuring BK to accept and process an increase of almost double the amount of waste originally contemplated at an incredibly high standard.”

And this occurred “all against the backdrop of maliciously withholding payment for operational or construction costs from BK for years at end, and failing to establish required accounts necessary to fund the Ministry’s shortfall in payments to BK as agreed, all in a deliberate but futile attempt to stifle BK and force a termination of the parties’ contract, cornering BK to expend and utilize its own resources to comply with the Ministry’s ever increasing unreasonable demands”.

BK claims that it “has not only complied with the Ministry’s demands and constructed and operated the landfill site without any failure whatsoever, but has invested more than five years and millions of dollars of its own money into the project, with the reasonable and legitimate expectation that it would reap the benefit of its hard work until the end of the contract in 2019 at agreed revised contractual rates, and that the Ministry would act in good faith”.

BK alleges that “upon information and belief, no other large contractor working on a project with the Ministry worth US$7,000,000 or more, has been treated in such a manner” and that the Ministry’s conduct “is epitome evidence of egregious bad faith, the decision to terminate being one which no reasonable government agency or official would have taken in light of the surrounding circumstances”.

BK International is represented by Attorney–at–Law Devindra Kissoon of the London House Chambers. The Attorney General’s Chambers has appeared for the Minister and Permanent Secretary. The Ministry has 21 days to reply to the order and parties will return to court on April 20.

Dave Kissoon of London House Chambers acts for local clients as well as international clients investing in Guyana. He is especially active handling corporate finance and M&A matters and has experience practising law in both the USA and England. Sources say: “His tenacity and relentlessness in pursuing the interests of his clients has earned him a very successful practice.”

Source: Kaieteur News

Over 80 operators from mining agencies across the country completed a two-day training course in Selective Explosive Blasting at the Guyana Forestry Commission (GFC) Multi Complex Building at Kingston, Georgetown.

The initiative which began on Tuesday, is a collaborative effort of the Guyana Geology and Mines Commission (GGMC) and Orica Mining Services.

Some 18 blasters are likely to become certified following a special third day assessment of their competence.

Local representative of Orica Mining Services, Devindra Kissoon noted that the event was the first public/private partnership venture in that sector where a private mining company is able to work with government in providing training.

He told this publication that, “within the last 50 years, many of the blasters in the field have matured.” He noted that new mining companies have entered the sector which is continuously growing.

“We recognize as part of our forward planning, that we did not want to be in a position where there was a demand for this expertise and it was not available. Currently, we have sufficient expertise in blasting, but that can quickly change,” he emphasized.

When asked the time span that could possibly see a deficiency in qualified blasters, Kissoon explained that a depletion of blasters could relate to life expectancy. Kissoon noted that localized training has been continuous.

Kissoon said the exercise is an anticipatory move by the government and Orica to ensure that the future of blasting in the mining sector is secured. The course dealt with mining aspects that relate to new techniques and technology, cost efficiency, safety and new products.

Kissoon said that the mining company which has been operating in Guyana for the last 46 years, is bent on providing training in safe blast operations in an environmentally friendly manner. The Latin American programme instructors, who have been practicing mining for some 15 to 20 years, are key employees of the mining company.

Kissoon said it was discovered that many persons were interested in this aspect of the mining process, especially since there was a 100 percent attendance, with over eight Guyana Defence Force (GDF) officers, police ranks, Guyana Geology and Mines staffers and several mining company representatives among others.

Orica is the largest established explosives company in the world and is based in some 50 countries, while they support over 100. The company is a multi-national corporation that provides commercial blasting, mining and tunneling support systems and various chemical products.

To be certified blasters, they must be deemed competent with no less than 80 to 120 blasts under their belt. With that requirement, Kissoon said the poll is very small, but is optimistic that, that will soon change with more training sessions for new blasters.

Selective Explosive Blasting uses the element of power and physics. Energy is put into a hole and is released through an explosive. The by-product of that energy will either be hard rock, which will be used for roads or ore which is used for gold mining.

That product is then processed to arrive at the end product.

The attached paper outlines the applicable provisions of the U.K. Bribery Act.  In so doing, it aims to provide the Caribbean/Guyanese Practitioner a better understanding of the applicable provisions, and in so doing, enable the reader to give practical advice to affected clients. It was presented at the 2013 Caribbean Commercial Law Workshop by its author, Dave Kissoon.

UK Bribery Act