Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

The Wa­ter and Sew­er­age Au­thor­i­ty (WASA) has emerged vic­to­ri­ous in a pro­tract­ed le­gal dis­pute with a con­trac­tor over the ter­mi­na­tion of a mul­ti-mil­lion dol­lar pipe-lay­ing con­tract.

In a judg­ment de­liv­ered yes­ter­day, five Law Lords of the Unit­ed King­dom-based Privy Coun­cil up­held WASA’s fi­nal ap­peal over a de­ci­sion by the lo­cal Court of Ap­peal to over­rule a High Court Judge and or­der al­most $14 mil­lion in com­pen­sa­tion for Uni­form Build­ing Con­trac­tors Ltd.

The law­suit cen­tred around a spe­cial­ist FIDIC con­tract, used in­ter­na­tion­al­ly for civ­il en­gi­neer­ing and con­struc­tion projects.

Un­der the con­tract, val­ued at ap­prox­i­mate­ly $29 mil­lion, the com­pa­ny agreed to de­sign, sup­ply and in­stall a to­tal of 28.43 km of pipeline from Rio Claro to Ma­yaro.

The con­tract was even­tu­al­ly ter­mi­nat­ed by WASA in mid-2009.

Sev­er­al years lat­er, the com­pa­ny brought the law­suit for­ward, be­fore the statu­to­ry time lim­it for do­ing so elapsed.

The case was dis­missed by High Court Judge Na­dia Kan­ga­loo but up­held by three Ap­pel­late Judges, in­clud­ing Chief Jus­tice Ron­nie Boodoos­ingh, in No­vem­ber 2023.

WASA filed a fi­nal ap­peal and re­tained Se­nior Coun­sel Anand Ram­lo­gan and Ganesh Sa­roop, of Free­dom Law Cham­bers, to pur­sue it.

In the judg­ment, the board ruled that the lo­cal Ap­peal Court was wrong to have up­held the com­pa­ny’s claims in re­la­tion to four pur­port­ed vari­a­tions to the orig­i­nal con­tract.

The vari­a­tions in­clud­ed lay­ing pipework in the road­way as op­posed to verges, the re­moval of ex­ca­vat­ed ma­te­r­i­al, the im­por­ta­tion of suit­able back­fill, and be­ing asked to work at night.

Sir Pe­ter Coul­son, who de­liv­ered the judg­ment, ruled that the Ap­peal Court erred in up­hold­ing the vari­a­tions with­out re­fer­ring to the terms of the orig­i­nal con­tract.

“Whether or not an item of work is a vari­a­tion is pri­mar­i­ly a func­tion of the con­tract terms, so the ab­sence of con­trac­tu­al analy­sis was, with re­spect, a fun­da­men­tal flaw in their rea­son­ing,” he said.

He al­so took is­sue with the fact that the Ap­peal Court’s de­ci­sion was based on WASA’s en­gi­neer for the project ap­prov­ing the al­leged vari­a­tions.

“The Court of Ap­peal’s con­clu­sion that, on the one hand, the en­gi­neer’s con­duct did not amount to an amend­ment of the con­tract (which he was pro­hib­it­ed from agree­ing) but that, on the oth­er hand, the same con­duct waived the rel­e­vant con­trac­tu­al re­quire­ments, failed to give full ef­fect to the terms of the con­tract and is con­tra­dic­to­ry,” he said.

He al­so found is­sues with the Ap­peal Court up­hold­ing the com­pa­ny’s ad­di­tion­al claim that even if the work was out­side the con­tract, it should still be paid as WASA would ben­e­fit from ser­vices it did not pay for.

Coul­son re­ject­ed the com­pa­ny’s claim that it was not aware that the ad­di­tion­al work would be re­quired when it en­tered in­to the con­tract.

“That ar­gu­ment must fail at every lev­el,” he said, as he not­ed that it had sev­er­al months be­fore the terms were fi­nalised to in­ves­ti­gate con­di­tions at the job site.

He al­so found that the pur­port­ed vari­a­tions were con­tem­plat­ed and pro­vid­ed for in the con­tract, and the com­pa­ny did not fol­low the prop­er pro­ce­dure un­der the con­tract to claim ad­di­tion­al funds.

“The pur­pose of the con­trac­tu­al regime was to en­sure cer­tain­ty so that, if there were claims for ad­di­tion­al monies, they were clear­ly set out and prompt­ly made,” he said.

WASA hailed the le­gal vic­to­ry in a press re­lease is­sued yes­ter­day af­ter­noon.

WASA CEO Dain Ma­haraj said the case set an im­por­tant le­gal prece­dent for such spe­cial­ist con­tracts.

“The de­ci­sion to pur­sue this ap­peal is jus­ti­fied, and WASA is vin­di­cat­ed. The judg­ment will pro­vide im­por­tant guid­ance for all pub­lic au­thor­i­ties and is a land­mark rul­ing that will ush­er in a new era of cor­po­rate gov­er­nance based on prin­ci­ples of trans­paren­cy, ac­count­abil­i­ty and prop­er con­tract ad­min­is­tra­tion,” Ma­haraj said.

Ram­lo­gan al­so is­sued a state­ment high­light­ing the le­gal is­sues de­cid­ed in the case.

He said in the law­suit that WASA’s own en­gi­neer sup­port­ed the con­trac­tor in the case in con­tra­ven­tion of the con­tract.

Stat­ing that the judg­ment should serve as a “salu­tary warn­ing”, Ram­lo­gan said: “Con­trac­tors who do busi­ness with pub­lic au­thor­i­ties must think care­ful­ly about their prac­tices.”

“In­for­mal­i­ty, pro­ce­dur­al short­cuts, and col­lu­sive con­duct— whether de­lib­er­ate or reck­less—have no place in pub­lic pro­cure­ment,” he added.

He point­ed out that the case high­light­ed the need to abide by writ­ten con­tracts.