JavaScript is disabled in your web browser or browser is too old to support JavaScript. Today almost all web pages contain JavaScript, a scripting programming language that runs on visitor's web browser. It makes web pages functional for specific purposes and if disabled for some reason, the content or the functionality of the web page can be limited or unavailable.

Thursday, July 10, 2025

THA wins Milshirv case

by

20140430

The To­ba­go House of As­sem­bly (THA) does not re­quire the per­mis­sion of the Min­is­ter of Fi­nance to en­ter in­to spe­cial fi­nanc­ing arrange­ments for its con­struc­tion projects, a High Court Judge ruled yes­ter­day.

Al­though Jus­tice Ron­nie Boodoos­ingh ruled that the Fi­nance Min­is­ter's ap­proval was un­nec­es­sary, in his 18-page judg­ment de­liv­ered in the Port-of-Spain High Court yes­ter­day, he stat­ed that such fi­nanc­ing agree­ments for con­struc­tion projects still re­quired a com­pet­i­tive ten­der as pre­scribed un­der the Cen­tral Ten­ders Board (CTB) Act.He said the THA was not out­side the purview of the leg­is­la­tion and could not seek to find un­ap­proved ways to get around per­ceived in­ef­fi­cien­cies and prob­lems in the leg­is­la­tion.

"At the end of the day the THA, as does the cen­tral gov­ern­ment, deals with pub­lic funds and it must op­er­ate with the su­per­vi­so­ry mech­a­nisms that ex­ist for over­see­ing the spend­ing of pub­lic funds, how­ev­er im­per­fect those mech­a­nisms are," Boodoos­ingh said.

The rul­ing comes a lit­tle un­der two years af­ter is­sues of the THA's abil­i­ty to en­ter in­to a Build, Own, Lease Trans­fer (BOLT) agree­ment for a $142 mil­lion Mil­shirv Ad­min­stra­tion Com­plex in Shir­van, To­ba­go, were raised by Prime Min­is­ter Kam­la Per­sad-Bisses­sar and At­tor­ney Gen­er­al Anand Ram­lo­gan dur­ing the cam­paign for the THA elec­tions last Jan­u­ary.

Af­ter ques­tion­ing the lack of Cab­i­net con­sul­ta­tion and ap­proval for the project Ram­lo­gan's of­fice had filed a ju­di­cial re­view chal­leng­ing the de­ci­sion and seek­ing to quash the deal.How­ev­er, dur­ing a pre-tri­al stage, the law­suit was con­vert­ed to one of statu­to­ry in­ter­pre­ta­tion where Boodoos­ingh was asked to de­ter­mine whether the THA re­quired cen­tral gov­ern­ment's ap­proval be­fore sign­ing the con­tract as well as if such a con­tract need­ed to be award­ed un­der the su­per­vi­sion of the Cen­tral Ten­ders Board.

The de­ci­sion has ren­dered Boodoos­ingh's judg­ment on the is­sue as hy­po­thet­i­cal and aca­d­e­m­ic since the project was no longer be­ing con­test­ed.In his judg­ment, Boodoos­ingh ruled that al­though BOLT agree­ments were fi­nanc­ing agree­ments, they did not re­quire ap­proval as they were not an at­tempt to bor­row mon­ey for cap­i­tal ex­pen­di­ture, which re­quired such, as pre­scribed in the THA Act.

BOLT agree­ments are a form of non-debt based fi­nanc­ing where a client gives per­mis­sion to a com­pa­ny to use its mon­ey to con­struct a fa­cil­i­ty on their land (client).The client then re­pays the con­struc­tion costs by en­ter­ing in­to a lease with the com­pa­ny for rent­ing the fa­cil­i­ty for a pre­scribed pe­ri­od. On the com­ple­tion of the lease, own­er­ship of the fa­cil­i­ty will be trans­fered to the client. It al­lows the client to utilise re­cur­rent ex­pen­di­ture rather than an up front lump sum pay­ment.

Al­though Boodoos­ingh ruled that the THA did not need ap­proval, he still sug­gest­ed that con­sul­ta­tion takes place in the in­ter­est of "good gov­er­nance and ef­f­i­cen­cy"."With­out con­sul­ta­tion, the THA risks that the Min­is­ter of Fi­nance will not al­lo­cate re­cur­rent ex­pen­di­ture each year to cov­er the pay­ment of the lease."The THA would then place it­self in the pre­car­i­ous po­si­tion of hav­ing to find al­ter­na­tive sources of fund­ing or to re­dis­trib­ute funds from oth­er re­cur­rent ex­pen­di­ture to ap­ply to its rental pay­ments," Boodoos­ingh said.

John Je­re­mie, SC, Ker­wyn Gar­cia and Stu­art Young rep­re­sent­ed the THA. Se­nior Coun­sel Alvin Fitz­patrick and at­tor­neys Les­ley-Ann Lucky-Sama­roo and Mar­tin George ap­peared for the At­tor­ney Gen­er­al.

THA re­sponds

In a re­lease sent yes­ter­day af­ter­noon, the THA's sec­re­tary for the Di­vi­sion of Fi­nance and En­ter­prise De­vel­op­ment Joel Jack said the THA wel­comed Boodoos­ingh's de­ci­sion as it was con­sis­tent with its long-held po­si­tion on the is­sue."This has al­ways been the po­si­tion of the THA which, pri­or to the es­tab­lish­ment of the Mil­shirv project, sought the ad­vice of Se­nior Coun­sel to en­sure that the as­sem­bly, as is its cus­tom, was op­er­at­ing ac­cord­ing to law," Jack said.

How­ev­er, Jack said the THA was dis­ap­point­ed that the is­sue was politi­cised dur­ing the runup to last year's elec­tion.He stat­ed that the THA sup­port­ed Boodoos­ingh's sug­ges­tion on col­lab­o­ra­tion with cen­tral gov­ern­ment, since the as­sem­bly had been ad­vo­cat­ing for such for some time. Jack al­so ac­cept­ed Boodoos­ingh's rul­ing on the re­quire­ment of a ten­der process for BOLT agree­ments.


Related articles

Sponsored

Weather

PORT OF SPAIN WEATHER

Sponsored