Minister of Communities Ronald Bulkan says government will appeal a court decision that the termination of a contract awarded to BK International to construct and manage the Haags Bosch landfill site at Eccles was hasty and unfair.
“The administration is in the process of appealing that decision because we are dissatisfied with the performance of the contractor,” Bulkan told Stabroek News on Thursday. He said that BK International continues to occupy the site despite the desire of the administration who are dissatisfied with his management and performance. “He continues to squat on the site,” Bulkan declared while adding that the company is not welcome at the site.
Earlier, Bulkan had told Stabroek News that the matter was handed over to the Attorney General’s Chambers and it was working to have the company removed from the site due to alleged negligence and incompetence. The minister said that BK International “will be paid whatever is owned,” but quickly added that the jury is still out on whether the company was owned any money.
Bulkan had emphasised that the ministry’s first priority is the removal of BK from the site. He said that there has to be effective management of the site.
Last month, then acting Chief Justice Ian Chang handed down a judgement in favour of the construction company and one-time site manager of the landfill project, seven months after a court action was filed against the abrupt termination of the contract which was to expire in 2019.
In his 80-page ruling, he said that given the provisions of the contract, “The respondents were under a public law obligation to afford BK an opportunity of being heard before it made any decision to terminate the contract. Had such an opportunity been afforded to BK, BK could have pleaded the numerous admitted breaches of the contract by the respondents themselves (including the serious breach of those provisions relating to the provision of finances to BK) as causes affecting its performance to its own detriment and to the prejudice of the public interest.”
He said it is indisputable that the relationship between the ministry and BK arose out of the contract made between them but is also equally indisputable that the function of constructing and operating the Haags Bosch Landfill waste disposal facility was a function of the government carried out through the medium of BK under a contractual arrangement made with it by the government in the exercise of the state’s common law power to contract.
He said it is also indisputable that the construction and the operations of the project involved considerable public expense and that the general public had a direct interest in the project not just because of the level of public expenditure involved but also because of the importance of the project to public health and welfare.
According to Justice Chang, under these circumstances it was not only about BK’s contractual obligation to it the ministry but also the ministry’s own primary obligations to the public health and welfare.
Justice Chang made it clear that since it is not the function of the court in judicial review proceedings to enforce contractual rights or to prevent the formation of contracts unless such formation is governed by public law, the court did not see it fit to make six of the Orders or Rules nisi of Prohibition and Mandamus granted on March 13, 2015 absolute.
However, it was seen fit to make two of the reliefs granted absolute; one pertaining to showing cause why the termination of the contract should not be quashed and the other, stopping the respondents and their servants from terminating the contract.
The other relief not made absolute included the removal of BK’s machinery from the site and awarding the contract to another company.
Since the ruling, BK International remains at the site.
Recently Minister of Public Infrastructure David Patterson told Stabroek News that his ministry was making provisional arrangements should the ministry have to assume responsibility for the Haags Bosch landfill.
In June, the Inter-American Development Bank (IDB) had threatened withdrawal of its involvement in the landfill project over non-compliance with the loan agreement. The IDB had signed a loan agreement with Guyana in 2007 for the sum of US$18.07 million for the project.
Project Director of the Georgetown Solid Waste Management Programme Gordon Gilkes had made a presentation to Bulkan in June stating that there was a plethora of non-compliant items in relation to the operations at the site.
He had stated that there was “the absence of a treatment abatement lagoon, a landfill gas management system and the application of a daily cover to the landfill.” In addition, he said, “soil excavated from several locations on site, intended for use as daily cover, was diverted, with the agreement of the executing agency, to another location for use not related to landfill management.”
BK has said that since the inception of the landfill, the contract between BK and the then Ministry of Local Government had many deficiencies.
In July BK International’s Managing Director Brian Tiwari told reporters “It’s not that I don’t want to leave this project. I’m willing to leave but I can’t leave until they pay us.”
