One day after filing a more than $700 million lawsuit against building contractor BK International for failing to complete construction of the Yarrowkabra Secondary School, Attorney General Anil Nandlall SC yesterday brought a similar suit against another contractor—this time for more than $400 million against Courtney Benn Contracting Services Limited (CBCSL) for what he says is its failure to complete construction work on another secondary school—the St. Rose’s High.
Nandlall’s first suit was against BK and the NAFICO Insurance Company. His latest action, however, is against CBCSL and the CARICOM General Insurance Company.
In this latest challenge, the AG is seeking from the defendants jointly and severally damages in excess of $100 million dollars for alleged breach of contract on the part of CBCSL for the reconstruction of the St. Rose’s High School.
He is also suing for the sum $41,230,435 as liquidated damages from CBCSL which he says has to be calculated at 10% pursuant to provisions of the contract dated 18th August, 2018 and its addendum dated the 23rd December, 2019.
In addition, the AG is suing for 105,812,929 which according to him is owed by CBCSL under the performance bond issued by CARICOM Insurance.
Aggravated damages to the tune of $100,000,000 for the construction company’s alleged breach of the contract is also being sought by Nandlall in addition to an order for restitution from CBCSL which he pegs at $67,337,538.
This sum he says constitutes an advance payment made by the government to CBCSL for which no works were done.
In the alternative, he is seeking an order of restitution against CARICOM Insurance for all monies owing on the advance guarantee and performance bond.
In total, the AG is suing for $414,380,902 but is additionally seeking interest, court costs and any other order the court deems just to grant.
According to facts deposed in Nandlall’s claim, on August 18th, 2018, the former A Partnership for National Unity +Alliance for Change government entered into a contract with CBCSL for the reconstruction of the St. Rose’s High School, at a cost of $352,709,745.
He said that on December 23rd, 2019, the government executed an addendum to the agreement through the Ministry of Education with CBCSL to increase the contract sum by $59,594,612 and, as a consequence, increased the original contract sum to $412,304,357.
That increase the AG said was to facilitate the cost for the construction of the deep foundation works which included the driving of 224 timber piles and preparation of the reconstruction site. That addendum he said amended special conditions of the contract which permitted a 15% mobilization advance to be paid to CBCSL to be increased to 20% which in turn resulted in CBCSL being paid an additional sum of $29,554,410.
Nandlall said that in compliance therewith, CBCSL received from government an advance payment of $118,711, 657 under the terms of the contract and as a consequence of the addendum, the contract was extended for a period 20 months and as such, the completion of the contract was set for no later than the 23rd August, 2021.
Stemming from all of this, the AG said that the construction company undertook to have the performance bond issued by CARICOM Insurance in favour of the Ministry of Education to reflect the new completion date.
Nandlall said that pursuant to the terms of the contract CBCSL submitted a work execution schedule to both the Ministry of Education and the Project Manager for the duration and completion of works.
In breach of its obligations, however, the AG said that the construction company failed and/or neglected to complete the scope of works in accordance with the work schedule.
He went on to depose that in August of last year, upon the request of the Ministry of Education, the Project Manager did an assessment of all the works done by CBCSL and concluded that in breach of the contract it had only executed 9% of the works after approximately nine months.
The AG contends that CBCSL’s failure to comply with the work schedule constitutes a fundamental breach of the terms of the contract and as a consequence, the Ministry of Education caused the contract to be terminated on November 2nd, 2020.
He said that the government has suffered loss and damage due to the breach especially since CBCSL received an advance payment of $118,711, 657 but with the valuation of the works executed being just $51,374,119.
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