The Office of the Contractor General’s is in receipt of an Open Letter, dated today, August 9, 2012, from the Jamaica Association of Contractors and Construction Consultants Co. Ltd. (JAC), which was copied to the Media.

Please now find, attached, for your information and publication, an Office of the Contractor General (OCG) Media Statement, in which is embodied the OCG’s response to the JAC.

August 9, 2012

Mr. Percival LaTouche

The Chairperson

Jamaica Association of Contractors and Construction Consultants Co. Ltd. (JAC)

16 Osbourne Road

Kingston 10

Dear Chairman LaTouche:

I am in receipt of your letter of even date in which you have advised that the Jamaica Association of Contractors and Construction Consultants Co. Ltd. (JAC), at its meeting of August 8, 2012, has unanimously agreed to accept the public invitation that was issued by the Office of the Contractor General (OCG), on July 30, 2012, to meet with representatives of the JAC.

Your letter was directed to me via email, dated today, August 9, and copied to the Media. I will,  therefore, also make this, our initial response to you, available to the Media via email.

The OCG sincerely welcomes the JAC’s acceptance of the OCG’s invitation as we believe that this will afford both parties with an ‘around the table’ opportunity to come to a better understanding and appreciation of the issues which are in contention, without confrontation or acrimony.

The OCG is, however, particularly concerned that your members may have been misguided into believing that the OCG has a discretion in some of the matters that appear to be of concern to the JAC. This is bourne out in at least two (2) of the JAC’s Media Releases that the OCG has seen, as well as in the speech that was delivered by you at the JAC’s meeting of August 8, 2012.

Two (2) of the matters in respect of which there appears to be some misunderstanding, as to the authority and the discretionary powers of the OCG, has to do with the following:

(1) The prescribed criteria – whether academic, professional, technical, supervisory, financial, or years of work experience –  which must be satisfied by a Contractor who seeks to be registered or re-registered, as a Government Works Contractors, on the National Contracts Commission’s approved List of Contractors; and

(2) The prescribed criteria which specify the circumstances in which a Works Contractor’s Application for Registration or Re-Registration will be declined.

In both of the afore-mentioned instances, it is important that your members recognize, prior to our proposed meeting, that the referenced prescribed criteria are developed and promulgated, not by the OCG, but by the Government of Jamaica (GOJ) and by the National Contracts Commission (NCC).

Consequently, if the membership of the JAC feels that the prescribed criteria are too onerous, unreasonable or burdensome, the JAC should be encouraged to direct its concerns, or any proposals that it might have for amending the criteria, not to the OCG, but to the Ministry of Finance and the NCC.

In its provision of administrative and technical support services to the NCC, inclusive of its vetting of Contractors’ Applications for Registration or Re-Registration, for and on the behalf of the NCC, the OCG’s job is simply to ensure that the said prescribed criteria are strictly enforced.

Consequently, to ask the OCG to revise the prescribed criteria or rules, to ignore the prescribed criteria or rules, or to only apply some of the prescribed criteria or rules, would be tantamount to asking the OCG to act in an unlawful manner – something which, obviously, the OCG cannot and will not do.

It is also important for the JAC to recognize that after the OCG vets the Contractor Registration or Re-Registration Application Forms, it is required to make recommendations to the NCC which are consistent with the NCC’s prescribed criteria and rules. Thereafter, it is the NCC, and not the OCG, which, under the law, decides whether a Contractor should be registered and, if so, in what Category and in what Grade. The same is also true in respect of decisions which have to do with the de-registration of Contractors. The final decision is that of the NCC and not that of the OCG. The OCG has no further jurisdiction over the matter, once it is passed to the NCC.

The OCG has also observed that there appears to be a misunderstanding on the part of the JCA as to the full extent of the NCC’s criteria which govern the Registration or Re-Registration of Works Contractors.

In an effort, therefore, to be clear, open and transparent about the key elements of the above-referenced NCC prescribed criteria, I would ask that you permit me to direct your attention, and that of your members, before-hand, to the e-link for the NCC’s Grades 1 to 4 Contractor Application Form. The Form includes an Appendix which is entitled “Contractor Assessment Criteria”.

The e-link is: http://www.ncc.gov.jm/ncc/documents/application_form_with_appendix_20111128.pdf

You will note that the Appendix to the Application Form clearly specifies, for each Grade (i.e. Grades 1 through 4), and for each Category of Registration, the prescribed criteria which must be satisfied by all Contractors who seek Registration or Re-Registration on the NCC’s Approved List of Government Works Contractors. The referenced criteria, which is prescribed by the NCC and not by the OCG, include:

(a) the minimum years that a Contractor Applicant must be in business;

(b) the minimum number of professional, technical and supervisory staff that a Contractor Applicant must have in its employ;

(c)  the minimum number of years of experience that each category of the Contractor’s staff must have;

(d) the minimum value of the projects that a Contractor Applicant must have completed;

(e)  some of the financial requirements that the Contractor Applicant must satisfy, and

(f)  the monetary limit of the Grade of Registration (i.e. the maximum value of the Government contract that a registered Grade 1, 2, 3, or 4 Contractor will be certified to bid on).

In respect of the circumstances in which the NCC prescribes that a Works Contractor’s Application for Registration or Re-Registration must be declined, I would also to direct your attention to the contents of Proviso #15, which appears on the 3^rd page of the NCC’s Contractor Application Form. Proviso #15 specifically reads as follows:

“If the information provided by the applicant on which evaluation and (contract) awards were based is found to be erroneous, then the contractor shall not be registered, or if already registered, the registration will be revoked”.

The OCG hopes that the foregoing will assist you and the members of the JCA to arrive at a better understanding of some of the key NCC Contractor registration and evaluation criteria, which are at the foundation of your concerns, even before we meet. Again, the OCG has no lawful or discretionary authority to change or not to apply any of these criteria.

I have asked Mr. Craig Beresford, the OCG’s Senior Director of Monitoring Operations, Corporate Communications and Special Projects, to communicate further with you to settle the date, the agenda and the logistical details for our proposed meeting.

In closing, please allow me to thank you and your colleagues in the JAC for agreeing to meet with the OCG regarding matters which, obviously, are of great concern to both parties.

I would also be grateful if you would accept my sincere assurances that the OCG will stand ready and willing to answer all of your questions. You also have my assurances and commitment that the OCG will seek to address and to remedy all of your concerns as best as it can, to the extent that its resources and/or its mandate, under the Contractor General Act, will permit.

Please permit me to extend to you, and to the members of the JAC, my best wishes and sincere regards.

Respectfully yours,

Greg Christie (Signed)

____________________

Greg Christie

Contractor General

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The Jamaica Association of Contractors, The Group representing present and former government contractors met on Saturday, July 28, 2012, at the Medallion Hall Hotel in Kingston.  The Group wishes to place on record, its dissatisfaction with the inordinate delay being experienced by Government Contractors in re-registration with the National Contracts Commission.

The current delay of sometimes more than three years on the part of the OCG, in making a decision as to whether or not an application for re-registration should be approved, is extremely unfair to the members of The Group, considering the penalty for an expired registration is immediate delisting.

What may not be readily appreciated is the extreme hardship this has caused to contractors while they await the outcome of the OCG’s review of their application. Many employees are laid off, financial commitments relating to equipment purchased cannot be honoured and sometimes, even family relationships are destroyed, as the financial stress, in turn, puts a strain on the contractors’ family.

The Group wishes to make it clear, that the responsibility of the OCG to ensure fairness and transparency in the awarding of Government contracts is not being questioned. However, The Group is strongly committed to protecting the interests of its members and will hereafter be vigilant in (a) taking all legal steps necessary to ensure that the OCG observes the principles of natural justice in its review of applications to re-register and (b) making representations to the Government for an urgent review of:

(i)            The regulations that govern when and how registrations may be cancelled,

(ii)          (ii)    The regulations that determine the qualifications required to be registered as an NCC Contactor and the qualification into which the contractor is placed and

(iii)         (iii)     The procedures for permitting contractors to have a fair opportunity for re-registration.

The Group will not hesitate to seek judicial redress where this becomes necessary and calls on the Government to urgently examine the manner in which the re-registration process is now being carried out.