Introduction
Last week I addressed the process by which Synergy was awarded the contract with a price tag of US$15.4 million for road and transmission line construction in connection with the Amaila Falls Hydro Electricity Project (AFHEP). The process was led by the government-owned private company NICIL, identified as the agency responsible for coordinating the project. The Request for Proposals was in the name of the Government of Guyana through NICIL. Now it must be remembered that in 2003 the National Assembly passed a Procurement Act which requires the government to comply with the provisions of the act in relation to all procurements. With a contract price of over G$3 billion, the contract comes easily under the National Tender Board. It seems, however, that the government was unwilling to take the legally mandatory route, choosing instead NICIL, seen as a pliant and useful vehicle by which the Procurement Act could be bypassed, without anyone noticing or complaining, and with complete impunity.
Of the seventeen firms originally registering an interest in the project, only the following four submitted tenders which, given the scope and challenges inherent in the work to be done, should have excited some concern at the governmental level. An obvious problem was the short time frame for putting together a proposal requiring considerable details which because of its involvement in the project over several years, gave Synergy a distinct edge.
1. Synergy Holdings Inc – USD15,400,000
2. A consortium comprising, B&J Civil Works, Ivor Allen & Dynamic Engineering Co Ltd – USD16,650,000
3. BK International Inc – USD21,037,500
4. Mr. Roopan Ramotar – USD26,000,000.
No right to complain
By virtue of their submission, only those four – or rather three, since the successful bidder is not expected to complain – enjoyed a right to challenge any perceived wrongdoing in the tender process. The law allows complaints only from a supplier or contractor who claims to have suffered, or who may suffer loss or damage due to a breach of a duty imposed on a procuring entity by the act and its subsidiary legislation. It also gives them the right to ask for information relating to the qualification, or lack thereof, of suppliers or contractors that submitted tenders.
Taxpayers who bear all costs, including the cost of corruption and inefficiencies should these occur, are not the suppliers or contractors and so they have to stand on the sidelines as passive victims, unable to challenge any substantive or procedural legal improprieties, however egregious or unlawful.
The law provides that where a contract has already been awarded, a complaint can be made to the Bid Protest Committee required under the act, but this is yet to be appointed. Not surprisingly the Finance Ministry does not seem to be aware of the rules governing the establishment of this committee, or maybe it suspects that no one would dare protest.
Despite the misgivings about the project award, none of the bidders is willing to challenge the propriety of the process or to ask for information presumably because they all benefit from other government contracts and would fear jeopardising their chances with other contracts. In their own way, the contractors contribute to the lawlessness and boldness that underlie this bid process and award.
Synergy’s qualifications
The Procurement Act sets out the criteria which a contractor must meet to qualify for a particular contract. These are essentially but not identically set out on page 8 of the RFP issued by NICIL. Information is widely available that Synergy did not meet any of these tests, but owing to sloppy background checks or self-delusion, the Ministry of Finance (MoF), NICIL and the government seem to think otherwise. For example, the MoF claims that Synergy has expertise and experience in building roads through forests, a claim that even Synergy does not make, and which is not supported by readily available information.
Synergy is a company in which Mr Fip Motilall is the sole director and secretary. Its total authorised capital is US$25,000 but because it has never filed an annual return it is not possible to know whether it has issued any shares or whether it has ever had its books audited. In other words, for all we know Synergy may be a paper company with no shareholders, no money, no audit and no other statutory compliance. Clearly, compliance with basic law is not seen as an impediment for the award of a government contract worth US$15.4 million. Co-incidentally, Synergy shares this disregard for the law with NICIL, the project co-ordinator.
Fact, fiction and fantasy
Synergy’s greatest strength seems to lie in its luck and the salesmanship of Mr Motilall, a Guyanese who migrated to the US several years ago. He successfully persuaded the US government to provide him with funds to do a study of the Amaila Falls hydro-project, and the Guyana government to enter into an agreement for his company to develop that project into an operational entity.
On its website, Synergy describes itself as the developer to design, build, own and operate a hydroelectric plant in Guyana. One immediately notes the absence of any obligation to transfer the plant to the government and wonders whether this is another attempt to mislead potential investors. The company claims that in 1997, it identified a dire need for electrical power generation in Guyana and sought to fill this need by harnessing the hydro potential of the country. In 1998, it joint-ventured with Harza Engineering Company to fund and perform a detailed feasibility study and Environmental Impact Assessment (EIA) for which it wrongly claims that it took a loan from the US Trade Development Agency (US TDA). In fact it was a grant.
The dissimulation continued with the assertion that the project had attracted equity investors and multi-lateral banks to finance the construction. Synergy is now looking for financing, even as Sithe describes itself as the project sponsor. What is true is that the company has been granted a licence to undertake the AFHEP although the particulars of that licence are not a matter of public information. Under the 2003 Jagdeo-Corbin agreement such matters are required to be tabled in the National Assembly.
Broken promises
On May 23, 2006, an MOU was signed between the developers and government and Guyana Power and Light Inc (GPL) for the development of the project. Here is a schedule of commitments and dates contained in Section 3 of the Schedule to the May 2006 MOU. Notice that Synergy has breached every one of its obligations under the MOU, most of which should have led to the immediate termination of licence, MOU and dealings.
Hydro by Christmas 2010
Emboldened by the brazen complicity of the government, Mr Motilall seems completely unmoved by his otherwise embarrassing incapacity to meet his obligations even within an unreasonable time. In fact, despite his failure his company’s website continues to tell the world that “the schedule that was agreed upon has the start of construction of AFHEP in August 2007 with commercial operation on the last quarter 2010. In the interim, Synergy and its partners agreed to supply a thermal power plant of 25 MW (to be operational in March 2007) as a way to meet GPL’s demand for power until the hydro-power plant can be built.
The hydro project will assimilate the thermal plant upon its commissioning and the 25 MW thermal power plant will most likely operate in a back-up capacity after 2010.” As my twelve year old would say, “Yeah, right.”
Next week we will look at the financial provisions of the several disparate documents and statements made on the project.