Yvonne Ba­boolal

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.