By: Kiana Wilburg
When it comes to non-disclosure agreements, Opposition Leader, Bharrat Jagdeo finds the Government to be two-faced. He has in the past, cited a number of cases for drawing such a conclusion. But yesterday during a press briefing, the former President was able to identify another.
In setting the stage for his grand revelation, Jagdeo made reference to an article that was carried by Kaieteur News in August. In that piece, he recalled that Minister of Public Infrastructure, David Patterson confidently stated that the PPP regime was famous for painting their contracts with confidentiality clauses. He recalled, too, Patterson’s promise that the coalition administration would not walk in the same path.
The Opposition Leader said that in less than a month, Patterson’s words would be contradicted by the very actions of his Ministry.
Jagdeo noted that the Ministry of Public Infrastructure published in the press on September 10, an Invitation for prequalification to finance, design, build and maintain the New Demerara River Bridge. The selected location is approximately two kilometers north of the existing floating bridge and the new bridge will span from Houston on the eastern bank of the Demerara River to Versailles on the western bank of the Demerara River. The new bridge is expected to be an essential part of the road network and will also have a significant impact on marine traffic passing under the bridge.
Jagdeo however, expressed his dismay with a particular aspect of the request for pre-qualification.
In reading an extract of the September 10 advertisement, Jagdeo said, “…The attachments to the pre-qualification document needs to be specifically requested by sending a formal written request including background of the company and the signed non-disclosure agreement attached to the request for the prequalification document….”
With that in mind, Jagdeo believes that this is a clear case of duplicity by the government. He stressed that on one hand the Government claimed it would not walk in the PPP’s footsteps, yet it is asking companies to sign nondisclosure agreements.
Indeed, the Government through the Ministry of Public Infrastructure will be asking companies that wish to be shortlisted for the bridge project to sign a nondisclosure agreement. But this does not mean that the actual contract for the project would be shrouded in secrecy.
Patterson made this clear during his interview with Kaieteur News last night.
The Minister explained that the nondisclosure agreement is to simply ensure that the interested companies do not share “proprietary information”.
Kaieteur News was able to see the nondisclosure agreement. The two page document also makes it clear what is expected of the company. Below is an extract of what the agreement actually stipulates.
For purposes of this Agreement, “Proprietary information” shall include all information or material that has or could have commercial value or other utility in the business in which the Client is engaged, including and not limited to political parties or other interest group competing with the Client.
In consideration of all the activities by the Contractor associated with the analysis of data, preparation of bids and negotiations, the Contractor hereby agrees:
To hold the Proprietary information in strict confidence and to take all reasonable precautions to protect such Proprietary information (including, without limitation, all precautions he employs with respect to its own confidential materials)
Not to disclose any such Proprietary Information or any information derived there from to any third person
Not to make any use whatsoever at any time of such Proprietary information except to make the bids to the Client and
Not to copy or reverse engineer any such Proprietary Information. The Contractor shall ensure that its employees, agents and sub-contractors to whom Proprietary information is disclosed or who have access to Proprietary [information sign a nondisclosure or similar agreement in content substantially similar to this Agreement, and shall indemnify the Client against the consequences of any failure by such employees, agents or sub-contractors to adhere to the conditions thereof.
Notwithstanding the foregoing, the Contractor may make disclosures required by law or court order provided the Contractor uses diligent, reasonable efforts to limit disclosure and has allowed the Client to seek a protective order.
The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. lf any part, term or provision of this Agreement is held to be illegal or unenforceable neither the validity, nor enforceability of the remainder of this Agreement shall be affected.
Neither Party shall assign or transfer all or any part of its rights under this Agreement without the consent of the other Party. This Agreement may not be amended for any other reason without the prior written agreement of both Parties. This Agreement constitutes the entire understanding between the Parties relating to the subject matter hereof.
The Public Infrastructure Minister stressed once more that the nondisclosure agreement is in relation to the “prequalification stage” of the project.
He said the fact that the Opposition Leader can even begin to insinuate otherwise is not only malicious but clearly speaks of “an envy that is burning deep within.”
The Minister said, “This is clearly the actions of a man who is running scared… We are 10 times more transparent about this project than they (the PPP) have ever been on all of their projects done in the past 23 years. It is nothing but envy. Also, we are giving an almost US$1M per year subsidiary to the residents of Regions Five and Six because of the Berbice Bridge, so if we have to provide a subsidy to the residents in Region Three for this one, then so be it. That’s our responsibility. If the PPP objects to us providing any support, they can oppose the funding when it comes up in parliament”
Patterson also noted that all the proposed financing models for the bridge will be examined and the best one in keeping with the administration’s vision to develop the nation will be chosen.
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