Education ministry, NWA and SDC cleared

THE Ministry of Education and two state agencies named in the Integrity Commission’s report on the circumstances surrounding the award of Government contracts to Westcon Construction over several years, were absolved of having to answer to allegations of breaches of the Contractor General Act, by failing to report over 20 contracts among them to the Contractor General.

In a letter to the speaker of the House of representatives and the president of the senate dated January 12 — a month prior to the tabling of the report in the House of Representatives this Tuesday — the commission’s director of corruption prosecution Keisha Prince-Kameka said although there is no limitation period for the prosecution of offences under the Act, “a likely challenge to these proceedings is one of a lack of fairness to the accused, on the basis of the constitutional right to a fair trial within a reasonable time, in accordance with the Constitution of Jamaica”, in reference to the National Works Agency (NWA) and the Ministry of Education, which the commission in its report said had failed to report 25 multimillion-dollar contracts between them, in their quarterly contract awards (QCAs).

Prince-Kameka said there was not enough evidence to mount charges against the NWA and the education ministry for breaches, for failing to report the award of multiple contracts to the contractor general in their QCA reports as “the prosecution would be hard pressed to resist an abuse of process application with regard to undue delay”.

She said the offence of disobeying a lawful request from the contractor general in regard to the QCAs, and a lack of lawful justification for failing to comply, had not been sufficiently proven.

According to the commission’s report, of the 34 contracts totalling $33.787 million, which the NWA awarded to Westcon between July 2009 and June 2016, only six of the 26 contracts which fell within the value threshold requiring the NWA to submit particulars of the contracts to the office of the Contractor General (OCG) were reported. The commission said the sole source procurement method was used on four occasions, and limited tender procurement for the remainder of those six contracts.

The report also said that of the 10 contracts it awarded to Westcon from February 2007 to November 2009 — valuing $21.8 million — only five were reported to the OCG for the period. The ministry used direct contracting procurement in one instance and the “lowest responsive tender” for the other nine contracts.

In the case of the SDC and allegations that its executive director Dr Dwayne Vernon had wilfully made a false statement to mislead the contractor general and had therefore breached section 29 of the Act, Prince-Kameka advised the House Speaker and Senate president that “the evidence does not reveal aprima faciecase with a realistic prospect of conviction in relation to the alleged offence. Therefore, no criminal charges are being recommended in respect of this offence”.

The director added, “At best, what has been identified are two statements which may be deemed conflicting, though the context of each, when they were made, does not automatically give rise to the inference that this is so”, as in order to amount to an offence, it must be demonstrated that a false statement was willfully made with the intention to mislead, did mislead, or attempt to mislead the contractor general.

She said there was no tangible support to this effect, beyond suggested inference, “which is neither inescapable or in any way conclusive of intent”, and that as such, no prosecution can be pursued with regard to this aspect of the investigation.