Horse Sense “Much Ado About Nothing” – Sanity at last

Congratulations are in order for Gleaner Horseracing Columnist, Howard Hamilton, who has proven to be the lone voice of sanity in the matter of the Contractor General’s many faux pas at Caymanas Track Limited (CTL) regarding the negotiating with Sportsmax/IMC to take the video simulcast signal from some United Kingdom and South African racetracks.

In what will be no doubt a vain attempt to avoid dodging the usual stream of bile, vitriol and bullyism to come from the Gentleman currently occupying the post of Contractor General towards anyone mildly critical of his conduct, I will begin by setting out his Statutory functions. Firstly, he has a duty to monitor the award of government contracts to ensure fairness in the award. This is the gist of section 4 of the Act set out below in part:

4 —

1. Subject to the provisions of this Act, it shall be the function of a Contractor-General, on behalf of Parliament —

1. to monitor the award and the implementation of government contracts with a view to ensuring that —

1. such contracts are awarded impartially and on merit;

2. the circumstances in which each contract is awarded or, as the case may be, terminated, do not involve impropriety or irregularity;

3. without prejudice to the functions of any public body in relation to any contract, the implementation of each such contract conforms to the terms thereof;

Please note that the only “action” word included in relation to the Contractor General is the word “monitor.

He is given wide powers of access and information but those powers are in the furtherance of his sole duty which is to monitor the award. He is not permitted by law to interfere with the award of the contract nor is he permitted to substitute his idea of best practices for those of the Government Company in the process of awarding the contract.

Insofar as the monitoring of this pre-contract process is concerned, the Contractor General has no powers to report or refer any findings to anyone. He is merely a Monitor.

But, you say, what if procurement procedures are breached and a contract awarded as a result? Or, what if, with the best will in the world, the Office of the Contractor General (OCG) fails to monitor the award of a contract because, for example, it is unaware that one is about to be awarded? Simply put, this is why the Act gives the OCG the additional power to investigate any contract to see if any such breaches has taken place. See section 15

15 —

1. Subject to subsection (2), a Contractor-General. may, if he considers it necessary or desirable, conduct an investigation into any or all of the following matters-

1. the registration of contractors;

2. tender procedures relating to contracts awarded by public bodies;

3. the award of any government contract; (emphasis mine)

4. the implementation of the terms of any government contract;

5. the circumstances of the grant, issue, use, suspension or revocation of any prescribed licence;

6. the practice and procedures relating to the grant, issue, suspension or revocation of prescribed licences.

The important point to note is that, it is the conclusion of such an investigation that gives rise to the powers of reporting, referral to other State powers etc. and the law is very clear that, if the OCG finds anyone to be culpable in any way, it must first send the report to that person. See section 20 of the Act

20 —

1. After conducting an investigation under this Act, a Contractor-General shall, in writing, inform the principal officer of the public body concerned and the Minister having responsibility therefor of the result of that investigation and make such recommendations as he considers necessary in respect of the matter which was investigated.

2. If any report of a Contractor-General reflects adversely upon any person the Contractor-General shall, so far as practicable, inform that person of the substance of the report.

Section 21 deals with instances in which the OCG finds, as a result of an investigation (NOT monitoring) a breach of duty or misconduct etc., he may report it to “the person or persons competent to take such disciplinary or other proceeding as may be appropriate against that officer or member and in all such cases shall lay a special report before Parliament. (Section 21). Note carefully that there is no authority to publish to the media or the world wide web. The “finding” of liability, whether civil, disciplinary or criminal, is his view only and is not a finding of law.

There is a general power regarding Annual Reports in section 28 which has a peculiar provision tucked away in sub-section (4). Here it is:

28

1. A Contractor-General may at any time be required by Parliament to submit a report to Parliament in respect of any matter being investigated by him.

2. A Contractor-General shall submit to Parliament an annual report relating generally to the execution of his functions and may at any time submit a report relating to any particular matter or matters investigated, or being investigated, by him which, in his opinion, require the special attention of Parliament.

3. Reports under this section shall be submitted to the Speaker of the House of Representatives and the President of the Senate who shall, as soon as possible, have them laid on the Table of the appropriate House.

4. A Contractor-General may, in the public interest, from time to time publish in such manner as he thinks fit, reports relating to such matters as are mentioned in subsection (2) and any case which is the subject of a special report under section 21, but no such report shall be published until after it has been laid pursuant to subsection (3).

So, the Contractor General has a very limited scope for the publication of his findings which is understandable bearing in mind the inflammatory nature of some of them. It is clearly considered by Parliament to be only in rare cases “in the public interest” that he may publish his general Annual Report or any of his Special Reports. However, it is clear that this Contractor General is confused as to what is in the public interest as opposed to what is in the interest of his own self promotion as every report of a public body being late with its quarterly reports have been widely published by this current occupant of this most sensitive office. This cannot be in the public interest. It cannot be in the public interest that there is a squabble within a particular industry which, although private sector in every other regard (including the fact that it is regulated by two Statutory Regulators to ensure tax compliance among other things) includes a government owned Promoting Company which is in that position only because of a Government takeover bid in 1989/90 made to succeed by an overwhelming tax debt which could not be paid.

But, let us examine the fundamentals of his “report” against the background of his powers as set out above and the undisputed facts as opposed to persistent rumour. It is undisputed fact that, at the time that his report was disseminated, CTL had not entered into any contract with Sportsmax or with IMC to take the English racing signal for the purpose of simulcast racing. As such, there can be nothing to investigate (ask Mark Shields if he would be prepared to investigate my wife’s murder and my obvious complicity therewith while she is still alive) and the OCG ought still to have been in “Monitor” mode with no right, power, duty or obligation to report anything. If there is no contract, pray tell how can there be any breach of procurement procedures in the award of that contract?

However, it cannot be denied that negotiations as to price were well advanced. And that a similar contract was in place with SIS’ agent in Barbados (who held the copyright for the racetracks not controlled by Sportsmax/IMC), for which large sums were paid out monthly. So, we need to look at the true nature of these contracts to see why the OCG is poking his nose into matters that he does not understand and which are none of his official business. It must be clearly understood here that we are not dealing with the broadcast by CTL of any simulcast signal. We are talking about the receipt by CTL of the simulcast signal owned and broadcast by overseas racetracks who have decided to license and appoint sole agents in the Caribbean to sell (or, more accurately, sub-licence) their rights. This is not a situation where CTL has road works to give out and ten political activist contractors are begging for the work. This is a situation where, if CTL does not broadcast these races live, it can forget selling bets on these races because the Bookies have purchased their sub-license and are paying the fee. Failure to take the signal would mean surrendering the entire market to the Bookies. No-one but the appointed agent (Sportsmax/IMC) can give CTL the right to broadcast these races live. It’s a take it or leave it contract in which CTL “awards” nothing but is the “awardee” of the rights contract.

So, what’s the fuss about? And what business is it of the Contractor General since CTL has not and is not awarding any contract at all? It is said that Pat Rousseau failed to disclose a conflict of interest. Give me a break!! Even the overly-enthusiastic Contractor General concedes that Pat Rousseau disclosed his interest in Sportsmax and withdrew from the process in both companies at the outset. He is being crucified for failing to disclose his interest in IMC the sole parent company of Sportsmax. Well blow me down. It’s obvious that this Contractor General has never lived in the corporate world despite his years of experience as an in-house bauxite company legal advisor. From all accounts, CTL was approached by Sportsmax. The Chairman withdrew and instructed that nothing of the deliberations be communicated to him. Sometime later in the negotiations, Sportsmax’s lawyers realized that, for legal reasons, the licencee from the racetracks was the parent IMC and not the subsidiary Sportsmax and changed the contracts accordingly. No one was telling Pat Rousseau anything so how was he to know that any further declaration was necessary? And, name me one adult citizen who would not know that the Chairman of the wholly owned subsidiary would have a similar interest in the parent company anyway? The only “interest” one can declare in Sportsmax is an ownership interest which means that you own shares either in Sportsmax or, if there are no individual shareholders, in the parent company.

Jeez Louise!! Out of this molehill, the Contractor General has made a mountain that not even Mohammed would dare approach.

With regard to the contracts to uplink CTL’s simulcast signals to the OTBs and to local TV stations, this contract is one that ought to have been put to tender but the Pat Rousseau Board came and found an existing contract to a Nevada corporation which might never have ended had not they decided to bite the bullet, risk adverse litigation by the Nevada company, and advise it specifically that the matter would be terminated and put to tender. In defence of previous Boards, this was never a matter which was the subject of competitive tender for the simple reason that no-one wanted to tender for the uplink of CTL’s signal which is not exactly popular worldwide. Furthermore, this type of competitive gaming industry, in which split second decisions keeps CTL abreast with the competition from technologically superior products, are not suitable to ponderous tender processes and the sooner the OCG recognises this, the better racing will be.

And, finally, I recommend that all readers go to the following link on the worldwide web namely:

http://www.ncc.gov.jm/website_files/gpphandbook_ver3.pdf

where you will find the latest updated Government Procurement Procedures Handbook as published by the National Contracts Committee. Check out Section No S-1000, Part III (Exclusions) and look at the list of types of contracts specifically excluded from these procedures. At Item 10, you will find “procurement of media related services” specifically exempted from these processes no doubt for the reasons set out in this piece.

Why did the Contractor General allow himself to be lured into an unauthorized “investigation” of a phantom irregularity by persons with axes to grind and a penchant for mischief-making? Did he seek to educate himself regarding this unique industry before plowing ahead in his usual bull-in-a-china-shop manner threatening criminal prosecution and bullying whenever he could? Will any Government Minister have the national patriotism and moral courage to tell this young man that he cannot make the threat of criminal sanction the foundation of every communication from his office and the publication of adverse findings against honourable citizens his raison detre?

I know that the Contractor General’s approach to his work at CTL placed untold stress on Don Tankoy and Wally Brown, who developed a permanent migraine and was forced into doing several MRIs and other medical tests before giving up the ghost (figuratively) for fear of being forced to give it up literally as my friend Don Tankoy did. Don would not leave his baby – simulcast racing – to be battered and bruised by an outsider with little expertise in the trade and less interest. So he stayed and tried to weather the storm. Wally took the way of least resistance and so he lives to fight another day.

And, it is on these castles of sand that allegations have been built and circulated that threatens to ruin the reputation of a man who has given 53 years of unblemished service as an Attorney-at-law and who is a Member of the Order of Jamaica for services to the nation. Most of us alive in Jamaica today cannot remember that, without Pat Rousseau’s negotiating skills in the 1970s, there would be no Bauxite Levy for successive Governments to raid to cover their recurrent over-spending. The Minister of Finance ought to be defending this man’s integrity to the fullest at the very least reprimanding the Contractor General for publicizing unproven findings outside of the circle of the Ministry and Parliament without first giving Pat Rousseau and the Board members an opportunity to defend themselves.

Minister, where are you going to find suitable persons to serve in the Public Sector in this environment? And a word to the incoming Board – the same knife stick sheep, stick goat. A word to the wide is sufficient

Good Luck!

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3 Responses to “Horse Sense “Much Ado About Nothing” – Sanity at last”

  1. Paul Wright Says:

    March 14, 2009
    Attention : Dr Paul OCG WELL WITHIN THE LAW .
    In this document the Office of the Contractor General shall be referred to as the OCG
    the Contractor General shall be referred to as the CG
    Caymanas Track Limited shall be referred to as CTL.
    Doc,
    I find the document not short on words but woefully lacking in substantiated argument against the Office of the Contractor General’s findings or actions By craftily setting up his own straw man and proceeding to knock it over the writer could confuse the uninitiated. However there are enough facts within his document to show that the Contractor General acted within his authority.

    The emphasis on the word “monitor” as the function of the OCG is a convenient “red herring” to detract from the OCG’s authority to investigate in pursuance of his mandate to monitor. This is clearly outlaid in section 15 of the act which your writer had generously included in his document although this information is introduced well below his attempt to convey the impression that by law the OCG is a toothless tiger whose only function is to “monitor” where monitor is to be interpreted as merely collecting reports given to him and pass those reports to parliament. It is disingenuous to state that the OCG by law is not permitted to alter contracts or to impose his concept of best practices upon any Board. The statement is factual; that is the OCG has no such power but nothing said or done by the OCG in this CTL case could be remotely construed as the OCG altering any contract or imposing his concept of Best Practices upon anyone. What the CG has found and reported was that the Board conducted the matter investigated was not in keeping with THE GOVERNMENT’S PROCUREMENT GUIDELINES and that in his opinion they also contravened sections of other laws. The Procurement Guidelines are not conditions stipulated by the OCG, they are policy directives of the Government of Jamaica. The CG did not make the laws either. He has merely pointed out what his “monitoring” revealed and referred them to the appropriate people to do their part in upholding the law and in accordance with the practice of good governance of which transparency is a part; he made his findings public.

    The suggestion that the OCG did not inform the Chairman of CTL of his findings seems to contradict the facts. It can be recalled that when the media sought comments from the Chairman of CTL on the matter, he acknowledged receiving the CG’s report but said he had not yet read it hence he would make no comment at that time. The Chairman of CTL is free to read the report at his convenience but there is a significant difference between not receiving a report and not reading a report received. There is no disputing the fact that Minister with Port Folio responsibility, the Speaker, the Leader of the Senate and Chairman of CTL; they all received the report as is required by law and that the matter was laid in parliament in keeping with the law.

    It is therefore erroneous or mischievous to suggest that the OCG acted improperly or outside the provisions of the law by publishing the report. Once again a statement of fact placed out of context can be misleading. It is a fact that no authority is given under section 21 to “publish to the media or the w.w.w. web and it is also a fact that the findings of liability whether civil, disciplinary or criminal is not a finding in law. But those facts stated In isolation without going on to state where the law empowers the CG to make is findings and how they are to be handled, such statements could divert observation from the fact that the OCG is given authority under section 28 subsection 4 to publish his findings/report. For quick reference I will quote 28 (4) which reads “A Contractor General may in the public’s interest from time to time publish in such manner as he thinks fit reports relating to such matters as are mentioned in sub section 2 and any case which is the subject of a special report under section 21 but no such report shall be published until after it has been laid pursuant to subsection (3)”. I therefore disagree fundamentally with the opinion expressed elsewhere that ” the Contractor General has a very limited scope for publication of his findings”. I see no limit in scope under the law. The law stipulates the procedure that must be adhered in exercising the authority to publish. It is abundantly clear that the procedure required under the law was scrupulously observed by the OCG. There can be no contending that this is a matter in which the public has much interest and very importantly it has significant bearing on the matter of good governance and ultimately the rule of law. Objection to the Contractor General making his report public must be seen as a blow against transparency. Happily the OCG will have none of that. He recognizes the need for transparency beyond September of 2007and so should the rest of us.

    Finally, the OCG has complied with the requirements of the law so that the”law“may have its course. This was done when in keeping with his mandate to “monitor” he exercised his power to access information by investigating proceeded to make his findings properly available by referring them to (a) the Minister with Port Folio responsibility, and (b)the Police. and (c) the DPP (a) for disciplinary action from the Minster if he sees fit (b) for the DPP to conduct their investigation in preparation for criminal prosecution and (c) the DPP to prosecute if in her opinion a prima facie case is established. In the end it is the court that will determine guilt or innocence. In this case I am of the opinion that the CG should be commended rather than pilloried. If I am wrong in my analysis of this matter I stand to be corrected.

    Sincerely,
    Lucius

  2. wonker Says:

    Interesting blog, I’ll try and spread the word.

  3. Howard Hamilton Says:

    Keep these cpomments coming!!

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