Minister of Planning and the Economy Dr Bhoe Tewarie has received legal advice from the Attorney General's Office which gives the green light to the Urban Development Corporation of T&T (Udecott) to lease prime land at the coveted Invaders Bay, Port-of-Spain, for a private billion-dollar project.The advice gives Udecott the authority to sublease the land to three developers who had been chosen by the ministry after a sole selective tendering process.
The three developers for the $5.5 billion-dollar Invaders Bay Development Project are Dachin Commercial Development Company, headed by businessman Derek Chin, who owns the MovieTowne franchise and proposes to develop 32 acres of the land, the Invaders Bay Marina Development Group, which is seeking 13.78 acres and foreign firm M Falcon Group (12 acres).The project involves 70 hectares of land, 23.79 hectares of which were reclaimed by Udecott in 2005.
The AG had sought legal advice on the matter from Sir Fenton Ramsahoye, SC, since last year, amidst concerns raised by the Joint Consultative Council (JCC), representing the construction industry, about the cloak of secrecy over the project and attempts to get information on it from the Government.The JCC had also challenged the selection process, saying it should not have been via the sole selective tendering process and should have also gone through the Central Tenders Board.
The JCC, which subsequently took the matter to court, has since obtained permission to file a lawsuit against Tewarie for refusing their request for information on the project under the Freedom of Information Act.The AG's legal adviser, Joan R Furlonge, forwarded the legal advice from Ramsahoye to Tewarie on February 21, 2012.In addressing the issue, Ramsahoye said he was asked to advise the AG on the JCC concerns as to whether the process of selection of three proposed developers for the project met legal requirements.
On the issue of which was the legal entity to conduct the process, Ramsahoye wrote: "As far as the State is concerned, the grant of the lease is not a matter which falls within the ambit of the Central Tenders Board and under the Central Tenders Board Act."
Ramsahoye said instructions were given by Cabinet on April 8, 2010, (under the former PNM administration) for Udecott to apply to the Commissioner of State Lands for a lease for the reclaimed land "and be authorised to seek expressions of interest for the establishment of a range of commercial enterprises."He said the Cabinet instructions remain in place.
Tracing the People's Partnership's involvement in the project, Ramsahoye said proposals by three entities were discussed by Cabinet in January 2011, and later evaluated by Evolving Technologies and Enterprise Company, which did not find them satisfactory and recommended that the Government invite investors to submit development proposals for the land in response to a Request for Proposals (RFP).
He said the Planning Ministry issued a RFP in August 2011 and public concerns were raised from then to the present time about the procurement process.According to Ramsahoye, Udecott's original position in the matter remains."The instructions given by Cabinet on April 8, 2010, for Udecott to apply to the Commissioner of State Lands for a lease for the reclaimed area remain in place," he said.
"It must follow that if the instruction is pursued, the lease will become a head lease which may, in turn, allow subleases to be carved out by Udecott."Ramsahoye added that the terms and conditions of the lease to Udecott, as well as subleases, will be in conformity with the Government's plans for the project. He said Cabinet decisions, so far, show that the Government expected the development of Invaders Bay to be done by private developers.
Making indirect reference to the JCC's insistence that the procurement process should come under the Central Tenders Board, Ramsahoye said: "The contemplated development does not, in the first place, fall within the ambit of the supply of articles or the undertaking of works necessary for carrying out the functions of government or statutory bodies."The development involves the grant of a head lease by the State to a public corporation which is owned and/or controlled or is an agency of the government," he said.
"The corporation itself is a legal entity with its own rights and obligations and is administered with its own constitution."When the lease is granted, the corporation will hold the paper title to it, but the grant of the lease itself is not a matter for the Central Tenders Board."Ramsahoye said the granting of subleases by Udecott to sub-lessees for the development of land at Invaders Bay is also not within the ambit of the Central Tenders Board.
Issues still to be resolved
There are, however, several issues raised by the JCC still to be resolved despite the advice.These include:
�2 whether the tendering/procurement process adopted by the Planning Ministry is unlawful according to the Central Tenders Board Act
�2 whether the process is to dispose of real property owned by the Government and whether it falls within the ambit of the Central Tenders Board
�2 whether the tendering/procurement process adopted by the ministry is one where the Government may act on its own pursuant to the Central Tenders Board Act
�2 whether the entire tendering/procurement process adopted by the Ministry is fundamentally flawed and should be terminated and the entire process initiated in compliance with legal requirements.
Contacted yesterday, president of the JCC Afra Raymond said he had not seen the documents sent by Ramsahoye to the AG and was unable to comment.Several efforts to reach Tewarie and Derek Murray, head of the T&T Transparency Institute, were also unsuccessful as calls to their cell phones went unanswered.
Deal troubles foreign firm
In July last year, M Falcon Group expressed fear that it would have been given the cold shoulder for its proposed US$300 million project for Invaders Bay. Falcon said they were informed that there was a problem with an all-foreign firm being involved in the project.Chin was more optimistic about his $2 billion project, Streets of the World.