UDECOTT vs. John Calder Hart et al
Breach of Fiduciary Duty, Bid Rigging
“Lindquist Goes After Hart”
‘…Bob Lindquist has been given the mandate to investigate if there was bid-rigging, manipulation of the tendering process and kickbacks to public officials in the award of contracts for two specific projects, the Ministry of Legal Affairs Towers and the beleaguered Brian Lara Cricket Academy…’
In March 2010 the UFF Commission issued its report into the construction sector and in regard to the Brian Lara matter their focus was on the ‘now’ events in 2006. However, given that the issues involved parties with a history, Lindquist focused on the ‘before’ events in 2003 and 2005. The claim filed in April 2013 reflects the results.
UDECOTT, a state owned entity carried on business as the Government of Trinidad and Tobago’s primary developer for the physical development and rehabilitation of urban and other designated areas within the Republic of Trinidad & Tobago. Calder Hart was Chairman of UDECOTT from January 2002 and from August, 2006, Executive Chairman until his resignation in March 2011. Its construction activities included commercial office buildings, hotel and conference centers, culture and art, historical restoration, sporting facilities, car parks and road rehabilitation. As at December 31, 2007 its assets totaled some US$1 Billion.
Prime Minister Persad-Bissessar added ‘I wish to also announce that Bob Lindquist has completed his investigations and has recently handed over his report to the Head of the Anti-Corruption Bureau. Persad-Bissessar said civil action will also be taken again Hart with respect to the award of packages to Hafeez Karamath Ltd for the Brian Lara Stadium’.
‘Summary of Claim’ from Paragraph 2a
‘…the Defendants owed to the Claimant a duty to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances and/or a fiduciary duty…’
‘At three Board meetings held in 2006, the First and Second Defendants resolved to award and UDECOTT subsequently entered into a contract dated 12th December, 2006 with Hafeez Karamath Limited for the carrying out of construction work on packages 2, 3 and 5 to 8 of the Brian Lara Cricket Academy when they knew and/or ought to have known that due to Hafeez Karamath Limited’s lack of management expertise and financial viability there was a high risk of Hafeez Karamath Limited being unable to complete the construction work…such that the Claimant should not have entered into the agreement’
Reference in Paragraph 9 to two earlier ‘requests for proposal’ projects:
Prior to the award of the contract to Hafeez Karamath the First and/or Second and/or Third and/or Fourth Defendant were involved in and obtained information from the tenders for the Customs and Excise Campus Plaza (2003) and the Ministry of Legal Affairs Tower (2005) which would have led a director and officer acting prudently to recommend the rejection of Hafeez Karamath’s tender for the BCLA PKS 2, 3 and 5 to 8.
Paragraph 14 gives a statement in regard to the Customs and Excise Building from 2003:
In May, 2003, the Evaluation Team produced a Third Report on the evaluation of the tenders for the Customs and Excise Building. The report was given to the First Defendant as Chairman of the Tenders Committee. Hafeez Karamath Limited was the lowest tenderer. Notwithstanding the fact that Hafeez Karamath Limited was the lowest tenderer, the Evaluation Team failed Hafeez Karamath Limited for a number of reasons set out fully in its report including the following;
- Hafeez Karamath Limited had failed to provide evidence that major sub- contractors had committed or were prepared to commit to the project for the duration of the project;
- Hafeez Karamath Limited was unable to produce financial statements for 5 years since it had only been incorporated in 2000 and such financial statements as provided showed a deficient working capital;
- Hafeez Karamath Limited submitted financial statements for a related company in order to attempt to qualify for the 5 years of financial statements. The failure to submit financial statements for the 5 years was in breach of UDECOTT’s Terms and Conditions for the Evaluation of Tenders. The Evaluation Team also found that the related company may in any event, have been gravely insolvent;
- That the financial statements submitted did not qualify the tenderer for consideration of a project of the magnitude of the Customs and Excise Building.
And in paragraphs 15 and 16:
The Tenders Committee of the Board of Directors, of which the First Defendant was the Chairman, considered the reports of the Evaluation Team, including the Third Report, and recommended the rejection of Hafeez Karamath Limited as a valid tenderer for the Customs and Excise Building. The First Defendant did not agree with the Third Report of the Evaluation Committee.
Paragraph 24 gives a summary statement in regard to the Ministry of Legal Affairs Tower from 2005:
As of March, 2005 therefore the Defendant was well aware that in respect of construction projects in excess of $100 million, the financial and construction management and/or management capability of Hafeez Karamath Limited was lacking.