McPherse Thompson, Assistant Editor - Business

The Minister of transport and works was back in the Supreme Court this week to request permission to seek judicial review following his failed challenge to the powers of the contractor general.

The legal fight evolved out of objections raised by the Office of the Contractor General (OCG) regarding an oversight panel created by Dr Omar Davies, which the regulator said usurped its role.

Dr Omar Davies lost the argument in a case adjudicated by Justice Lennox Campbell last year.

Campbell denied Minister Davies' request for a judicial review in a decision handed down in February.

However, the minister has renewed his request and wants the opportunity to make his argument before a panel of Supreme Court judges, instead of just one justice.

Justice Raymond King granted Davies' request on Monday to make his case again for a judicial review. The hearing of that application is set for April 8 before three judges in the Judicial Review Court.

Those justices will decide whether to grant permission for the minister to seek the judicial review of the contractor general's powers.

Attorney General Patrick Atkinson, QC, who is representing the minister, told the Financial Gleaner that the matter is not an appeal but a rehearing, which does not necessarily mean that the same arguments presented before Justice Campbell will be presented before the full court.

"It could be different, it could be additional," he said.

Justice Campbell took seven months to make a decision on hearings that concluded in July 2012. His written judgment has only recently become available.

Campbell ruled that the independent oversight panel appointed by Minister Davies to advise on the award of contracts is essentially a public body and is, therefore, subject to the authority of the contractor general.

Filing to escape the OCG

The ruling arose from an application filed by Davies last year seeking leave to apply for judicial review of the contractor general's decision to monitor and investigate the oversight panel.

Davies had also sought a declaration that the contractor general exceeded his statutory jurisdiction when he issued a media release which contained adverse findings and conclusions in respect of the oversight panel.

He also sought injunctions to restrain the contractor general from continuing to monitor and investigate the activities of the oversight panel, and from issuing any further requisitions or publishing any media release in respect of the establishment and activities of the panel.

However, Justice Campbell refused to grant leave for judicial review, as well as the injunctions and all other remedies sought by Davies.

The oversight panel comprise principal of the University of the West Indies, Mona campus, Professor Gordon Shirley; businessman R. Danny Williams; and accountant Everton McDonald.

In May last year, the contractor general ordered the panel to routinely submit formal written reports outlining the material particulars of all of its deliberations and communications on three government projects: the completion of the North-South toll road highway project; a feasibility study of the viability of China Harbour Engineering Company (CHEC) developing new berthing capacity at the port of Kingston; and a feasibility study of the viability of French shipping firm CMA CGM developing new berthing capacity at the port of Kingston to be used as its hemispheric hub.

According to the judgment, Davies' legal team, led by Attorney General Atkinson, relying on an amendment to the Contractor General Act (CGA) in 1999, argued that then Contractor General Greg Christie mis-construed his powers and acted ultra vires when he issued the requisition to the oversight panel.

That amendment, they sub-mitted, established the National Contracts Commission (NCC) and that it was its function to promote the "efficiency in the process of award of government contracts".

However, the OCG's lawyer, Jacqueline Samuels-Brown, QC, cited the decision in the 1991 case of John Lawrence v. Ministry of Construction (Works) and the Attorney General, that "the proper interpretation of the act is one which empowers the contractor general to monitor the pre-contract stages of government contracts and to obtain information from public bodies prior to the award of such contracts."

Davies' lawyers countered that the amendments to the CGA - eight years after the decision in the case of John Lawrence - gave pre-contract oversight to the NCC and not the contractor general.

Persuasive argument

Justice Campbell found Samuels-Brown's argument to be persuasive.

"I find that the amendment of the act ... has not affected, amended or altered the power of the contractor general to investigate public bodies prior to the award of a contract," he wrote.

Davies described the oversight panel as a voluntary advisory body, established to report to him on pre-contractual activities.

But Samuels-Brown submitted that, according to its terms of reference, the oversight panel was appointed to perform duties on behalf of the Government in relation to specific contracts.

It therefore falls within the category of "agency of government" so that the power of the contractor general relative to public bodies applies to the panel and its members relative to the performance of those functions, she argued.

Justice Campbell agreed that the duties the panel performs are public duties.

"It has been empowered by an act of the executive to make decisions that, if validly made, will lead to administrative action or abstention from action by an authority endowed with executive powers," the judge said.

In finding that the oversight panel "is a public body for the purposes of the Contractor General's Act", Campbell noted that "the act extends the contractor general's reach to 'any other person' and to 'such person' as, in his view, can provide relevant information."

Referring to the minister's complaint about media releases relating to the oversight panel, Samuels-Brown submitted that "there is nothing in the law which renders it illegal, ultra vires or inconsistent with the contractor general's duties for him to communicate with the public relative to matters that touch and concern the execution of his duties."

Unsolicited bid

Justice Campbell ruled that there is no evidence that the decision by the contractor general to have the media release published was outrageous, illogical or breached moral standards, as the minister pleaded.

The OCG, in the proper discharge of its functions, might judge that it was necessary to issue news releases, which may contain material from some of its investigations, if the legitimate interests of Parliament and the wider public were to be met.

Part of the contractor general's concern was that CHEC made an unsolicited bid for the project and it was not subjected to open, transparent and competitive tender.

Among other issues, "these were legitimate and reasonable concerns for any contractor general," Justice Campbell said.

"There is no evidence before me that the contractor general has taken into account any matter that ought not to be, or disregarded any matter that he ought to have taken into account," Campbell wrote.

He said the main aim of the CGA is ensuring that government contracts are awarded impartially and on merit and that there is no impropriety or irregularity.

"This court cannot act as an appellate authority but must confine its role to that of a review court to see if he has acted in excess of his authority," the judge said.

"I cannot say that no reasonable contractor general, faced with these circumstances, would not act as this contractor general did," Justice Campbell said.

mcpherse.thompson@gleanerjm.com