McPherse Thompson, Assistant Editor - Business
The Office of the Contractor General (OCG) has been advised by its lawyer to continue monitoring and investigating the award of government contracts, even while the parties await the Supreme Court's interpretation of statute governing the office.
China Harbour Engineering Company (CHEC) began work in early December 2012 to complete the north-south link of Highway 2000, though the project is part of the litigation.
According to correspondence accompanying a report submitted by the OCG to Parliament last week, attorney Jacqueline Samuels-Brown, QC, responding to a letter from Attorney General Patrick Atkinson to the contractor general, agreed that while they await the ruling the business of government must go on.
"On the other hand, the work of the Office of the Contractor General must also continue, and on my instructions, my clients are determined to carry on with their obligations to the Parliament and people of Jamaica," the lawyer said.
"It is pursuant to this that the requisitions have been made, and I have considered it my duty to advise the Office of the Contractor General that this remains within the ambit of that office's powers."
In June 2012, Minister of Transport and Works Dr Omar Davies filed an application asking the Supreme Court for an interpretation of the law governing the OCG's office.
The minister also sought an interim injunction to restrain the contractor general from making further requisitions of the ministry relating to projects being undertaken by CHEC. However, the injunction was not pursued during arguments in the court.
The Ministry of Science Technology Energy & Mining (MSTEM) has also declined to submit information to the contractor general in relation to the LNG regasification terminal and supply of gas, and is also awaiting the court's decision although it is not a party to the application before the court.
According to a legal opinion from Samuels-Brown, which is among the documents submitted to Parliament, full arguments were made by lawyers for the contractor general and the minister on July 27, 2012.
The judge, who was not identified, then adjourned the application to consider arguments and advised the lawyers they would be informed of his decision. The judge is yet to hand down a ruling.
Submission of the report to legislators followed the OCG's referral of the Cabinet to the director of public prosecutions for failing to comply with statutory requisitions in relation to a number of projects.
The OCG directed requisitions to the Cabinet office in relation to: approval for the continuation of the north-south link of Highway 2000, the Gordon Cay container trans-shipment hub, Fort Augusta container terminal, the establishment of an oversight panel to oversee the award of government contracts, extension of the operating agreement with Blue Diamond Hotels and Resorts Inc - Braco Resorts, formerly Breezes Rio Bueno, and the LNG project.
In the November 20, 2012 letter to the contractor general to which Samuels-Brown responded, Atkinson said that "What is glaringly missing from the many letters you have written in this matter is the fact that in the minister of transport, works and housing matter, there is also a claim that the contractor general acted unlawfully and in contravention of the Contractor General Act in publishing comments, conclusions and recommendations regarding matters he is investigating."
He said the matter is sub judice and therefore inappropriate for the contractor general to comment on its merit in the media.
Samuels-Brown agreed with the attorney general on that point. "However, this in no way detracts from the public's right to information regarding the status of pending litigation, particularly when the litigation relates to matters of national importance," she said.
"On my further instructions ... the Office of the Contractor General ... would not be commenting upon the particulars of a case, but would merely be advising the public that in the discharge of its statutory duties it has referred a public official for his/her failure to comply with the lawful request of a contractor general."
In the legal opinion provided Samuels-Brown said that while the application before the Supreme Court is pending, the law remains as stated in the case of Lawrence versus the Ministry of Construction (Works) and the attorney general; and that the OCG as well as government officers and departments are bound by it.
The Lawrence case is the only decision of the Jamaican Supreme Court in which the ambit of the contractor general's power to monitor the award of contract is considered and ruled upon, she noted.
In his November letter to the contractor general, Atkinson said he advised Cabinet, the minister of transport and MSTEM that compliance with the contractor general's request should await the Supreme Court's decision.
However, Samuels-Brown said that the attorney general's advice "cannot supersede or supplant the law as pronounced by the court".