Dear Editor,
I wish to give my contribution to the ongoing issue of the overpayment to two contractors at Rose Hall Estate in response to the invitation extended by letter writer Narendra Lall in his letter to the media dated 13th September.
Let us examine the Estate Manager’s response in his letter captioned, ‘There were good grounds for deviation from the tillage rate, Guysuco will benefit’ (Stabroek News dated 31st August, 2022). He admitted that ‘the change of the payment was from piece-rated to time-rated and not a wrong application of the rate per hour’. He further admitted that he paid the ‘approved’ rate of $8,500 per hour but the deviation was ‘necessary’ and he gave reasons.
However, he did not explain the ‘deviation’ which is, that the piece rate is 2.25 hours at $8,500 to complete 1 hectare which will give $19,125 to complete 1 hectare and paying by hours will result in gross overpayment. For instance, the Table in the Special Audit Report on Page 6 for Contractor Teajman showed that on 30/04/2021 he worked 20 hours and this multiplied by the rate of $8,500 resulted in a payment of $170,000. But the number of hectares he completed was only 4. This number of hectares multiplied by $19,125 will give $76,500. As a result, the overpayment is $170,000 -$76,500 which is $93,500.
This is a material change in the application of the rate from piece to time and Mr Dukhia admitted this fact. He also admitted that he did this without the approval of the Chief Executive Office or the Field Operations Director. These persons must approve any such deviation since they initially approved the contracts not the Estate Manager. Mr Dukhia knew with his vast working experience at Guysuco that he should have sought the approval from these persons, but did not.
In Narendra Lall’s letter dated 9th September, 2022, he quoted the Terms of Reference which stated that there are concern about ‘overpayments to contractors that were due to incorrect methodology (rates) applied for payments (paid as per actual operational hour of machines, instead of completed hectares and/or equivalent operational hours, as stipulated in the contracts and approved rates schedule’. Mr Dukhia admitted that there was ‘incorrect methodology’ in his letter. Therefore, the question was never about time-rated but piece-rated according to the completed hectares at 2.25 hours per hectare.
In Narendra Lall’s letter dated 13th September, 2022, he misquoted a research Paper as it relates to the overpayments which stated that, ‘nobody should profit from crime; this fundamental moral principle is uncontroversial’ (https://link. springer.com). In this Paper Mr Springer focused on stripping criminals from deriving ‘any form of profit from their criminal activities’. Guysuco did not commit a criminal act: it approved a rate which was not applied by Management at Rose Hall Estate.
Moreover, the legal principle, ‘nullum crimen sine lege’- ‘a person should not face criminal punishment except for an act that was criminalized by law before he/ she performed the act’ does not apply since the CEO did not retroactively apply the rate, he merely gave a reminder. This rate was already in existence since January 2021 as admitted by the Estate Manager.
In conclusion, if there was any ambiguity which resulted in doubt with regards to the methodology, then the onus was on the Estate Manager to clarify this with the Field Operations Director at Head Office or the CEO, but clearly he did not. As it is there can be no justification for the deviation from the approved methodology.
Yours sincerely,
Zafiel Khan
