SC went with ACC’s investigation report and recommendations
Supreme Court Construction: The Supreme Court yesterday directed the High Court for works and human settlement ministry to take administrative actions against tender committee members in the award of the Supreme Court construction.
It was found the committee members had attempted to favour Nima Construction in awarding the work through manipulation and tampering with tender documents.
In the past, administrative actions the ministry implemented basically meant a mere reprimand.
Going by the Bhutan Civil Service Rules, administrative actions usually include reprimands, which normally falls under minor penalties, especially for a civil servant’s carelessness or negligence of duties and non-compliance or failure to implement provisions of the civil service Act and other laws and rules.
Minor penalties also include a fine of equivalent to a month’s salary, withholding of short-term trainings or an annual increment or two.
Major penalties comprise withholding of annual increment for three-five years, reduction of salary, withholding of promotion, long-term training, demotion, compulsory retirement with benefits and termination without benefits.
The ministry has three months to take whatever administrative actions against the tender committee members.
The minutes of the Inter-Ministerial Tender Committee meeting signed by the members on October 16, 2007 showed 11 members on the committee.
The members comprised former works and human settlement minister Kunzang Dorji, who was the chairman then, Supreme Court Construction project director and former High Court judge Jigme Zangpo, urban development and engineering services director Rinchen Dorji, its chief engineer Ugyen Tshewang, project director Phuntsho Gyeltshen, quality and control director Rinzin Namgay, construction development board executive director Wangdi Gyeltshen and ministry’s Deki Chhoden.
Two other representatives, former DNP director general and present RSTA director Lham Dorji and the then chief administrative officer from agriculture ministry Sonam Wangdi were also participants of the meeting.
After three months, works and human settlement ministry has to report to the Supreme Court and Anti Corruption Commission of the administrative actions taken against the members of the committee.
“Should the ministry fail to take any actions, the court will issue a contempt of court order to the ministry” Supreme Court justices said.
Contempt of court is a petty misdemeanor, that spells between less than a year to a month’s prison term.
The Supreme Court had affirmed ACC’s investigation report and recommendation for administrative action against the officials involved.
The court had, in November 2011 issued a letter to the commission to investigate the case because the litigation involved forgery and corruption and that it was a process before the case was submitted to the court.
ACC had basically re-examined the two investigations – one that it conducted and other by Yarkay Group – and enriched the findings by gathering additional information, documents and evidences.
The commission had, much before the case went to Supreme Court, forwarded their recommendations along with the investigation to the ministry for administrative actions against officials involved in the tender process.
However, the ministry did not heed to the recommendations arguing the case was subjudice.
The commission had also asked the ministry to take appropriate administrative actions against Nima Construction for intentionally misrepresenting and misinforming authorities to secure additional contract works besides the five it already had at hand.
It had seven projects at hand against CDB rule that allow only five.
“I’m happy that due justice has been done after five long years by the Supreme Court affirming ACC’s recommendation to take administrative actions against officials involved,” Yarkay Group’s managing director Phub Zam said. “This shows our submission and pointing out elements of corruption and manipulation in the tendering process in relation to construction of Supreme Court office is proven correct.”
Meanwhile, the court affirmed the High Court’s ruling to dismiss compensation that Yarkey claimed because it was established that the company had accepted the four packages of the ministers’ enclave project as separate.
Yarkay had considered the construction of four structures of the ministers’ enclave as one project and argued that it being the lowest bidder, should have gained the contract to build the remaining four of the eight structures.
“I’m unhappy for not getting compensation for expenses I incurred in fighting the case, which in turn helped the government save Nu 220M because of our intervention,” she said following the court order.
Yarkay claimed compensation of Nu 62M, the loss it incurred for being deprived of the award of the Supreme Court work due to malpractices the ministry practiced.
The controversy surfaced in October 2007 after works and human settlement ministry disqualified Yarkay from partaking in Supreme Court construction project.
The ministry said the company already had five contracts, the maximum, at hand.
Yarkay submitted to the courts that although they bid at Nu 580M, the lowest by about Nu 60M compared with Nima Construction’s bid of Nu 640M, it was made the second lowest evaluated bidder.
The whole issue of the bids being substantially higher than the estimated cost, Yarkay Group’s submission stated, emerged only after it pointed out irregularities and flaws in the ministry’s intention to try and award the work to an identified contractor that was not even eligible to be called for negotiations.
Had the company not raised any objection, the statement said, the other company would have succeeded.
The ministry subsequently brought in the cost estimate factor as an excuse to call a re-tender.
Yarkay Group filed the case with the Thimphu district court in November 2007.
It appealed to the Supreme Court after the High Court overruled its lower court’s judgment on October 10 last year.
Correction: An earlier version of the article said finance secretary Lam Dorji was part of the tender committee. The former director general of DNP Lham Dorji was part of the tender committee and not the finance secretary.
By Rinzin Wangchuk