– Gov’t can set it aside if it wanted to – Nandlall
While Government and Minister of Public Health Dr. George Norton have acknowledged that a mistake
was made when Norton’s ministry sole sourced a drug bond storage contract, there seem to be no plans to reverse the agreement.
It is the opinion of former Attorney General Anil Nandlall, that there are so many problems with the agreement even the average taxpayer could take it to court and get it rescinded. For one, he cited the fact that what the Ministry of Public Health rented was originally intended for office space.
The Agreement of Tenancy had stated that the building would be used as a professional office. According to Nandlall, this alone constitutes grounds for the contract to be set aside, since it could be argued that Government erred in entering the contract. Nandlall pointed out that a contract can be set aside due to a fundamental mistake.
He also noted that the contract was not issued under the Procurement Act.
The Procurement Act sets out five instances under which a Government is allowed to single source a contract. These are: if the goods and services are available from only one source and no reasonable alternative exists. It can also be if the services are too specialized or complex to be provided by any other supplier. It is also allowed if there was a catastrophic event that creates a situation of urgency or if goods were already procured and it is decided that for the sake of compatibility, additional supplies must come from that very supplier.
The final conditionality for single sourcing involves matters of national security.
According to Nandlall, the contract clearly was not issued under the Procurement Act, as there was no public tendering. He stated that even if a quotation was taken from New Guyana Pharmaceutical Company (New GPC), the principle of fairness should have mandated that New GPC be used. He noted that New GPC was offering 70,000 square feet of drug storage at $237 per square foot.
Nandlall said that, inexplicably, no resort was made to the Procurement Act.
“Courts have repeatedly ruled that contracts in violation of the Procurement Act are unlawful,” he said. He gave as an example the 2013 case of BK International versus Guyana Geology and Mines Commission (GGMC). BK had taken GGMC to court to have a contract for the rehabilitation of Aremu Road withdrawn from a mining company.
Former acting Chief Justice Ian Chang had subsequently overturned the contract award on the grounds that one of the companies had breached the Procurement Act by not submitting key documents.
In light of these circumstances, Nandlall made it clear that arguments by Government for the retention of the contract are “spurious.”
The bond at the centre of the controversy was rented from Linden Holdings Inc., a company that is linked to businessman, Lawrence “Larry” Singh, for $12.5 million monthly.
The deal was signed between the Ministry of Public Health and Linden Holdings Inc., on June 1st, 2016 and is in place for three years, with the possibility of renewal.
The rental of the bond only came to light after Minister Norton was asked by the Opposition on August 8th, in the National Assembly, to explain a $25M spending.
He explained at the time that Government only took the decision to rent the Sussex Street building because of the hefty rent of $19.2M charged by New GPC.
New GPC subsequently refuted this, saying that it has never charged the Government of Guyana for the use of its bond.
Following a torrent of negative publicity, Norton had called a press conference to apologize for the “unfortunate episode.”
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