OAG drops Amochhu gabion wall bribery case

Clears Ed of Rigsar and former ES of Pling thromde for bribery and misuse of power

Rinzin Wangchuk

The Office of the Attorney General (OAG) will not prosecute the executive director of Rigsar Construction Private Ltd. and the former executive secretary of the Phuentsholing thromde, which the Anti-Corruption Commission forwarded for alleged bribery.

The government’s prosecutor dropped the case, in relation to the construction of walls along the banks of Toorsa (Amochhu) river, justifying that the accepted rates and funds appropriated for the gabion wall construction were legitimate.

The decision to not prosecute was conveyed to the ACC on May 20 in writing.

The Attorney General (AG), Shera Lhundup, who demitted office on Thursday, stated that the Thromde Tender Committee (TCC) had followed due process in awarding the work to construct the gabion wall.

ACC has recommended the OAG to charge Rigsar’s ED Sherab for active bribery of public servant and former executive secretary (ES) Wangchuk Thayey, for passive bribery for receiving Nu 250,000.

The former ES is also implicated for abuse of function, as he did not follow due process in re-appropriating additional budget from the budget allocated to the construction of Khariphu road.

In its investigation report forwarded to the OAG on December 31 last year, ACC also recommended the Phuentsholing Thromde management to take administrative action against the TTC members for failing to carry out proper cost estimates of the gabion wall.

ACC Investigation report

In 2017, Phuentsholing Thromde awarded the construction of gabion wall at Amochhu to Rigsar at Nu 11.9M. There were controversial issues pertaining to the award of the work directly to Rigsar, including the fund arrangement by the Thromde.

ACC through their investigation found that the construction of 450 meters long gabion wall at Amochhu bank was awarded directly to Rigsar.

ACC stated that awarding the contract directly to Rigsar was an undue favor extended by abusing official functions of the ES and by means of bribery of Nu 250,000, which the ES received in his personal bank account from Rigsar’s ED.

The ACC determined that the ES had improperly used his position to seek approval of Nu 4.502M for the construction of a 250m gabion wall and had also failed to follow the budget re-appropriation procedures while allocating additional Nu 7M from the Khariphu approach road construction budget when the length of the gabion wall was increased from 250 meters to 450 meters.

The investigation alleged that the proposal to increase the length of the gabion wall, its technical design and the cost estimate were as per proposal made by Rigsar and the committee awarded it without analyzing the rates, especially the cost of boulders which was readily available at the site. They concluded that those failures had let to Rigsar gaining Nu 3.252M from the total project cost of over Nu 11M.

The contractor executed the project for the full stretch of 423.2m gabion wall and was eventually paid Nu 11.232M out of which Nu 7M was appropriated from road construction to Khariphu.

OAG findings and decision

OAG found that the danger posed to the lives and properties by the annual monsoon floods of the Amochhu was real and that it was the thromde’s duty to protect them. “Yet both the government agency and local companies have declined to undertake the task to dissipate the flood’s rage by dredging the cumulating stone materials in the river that inevitably diverts the monsoon rage towards human settlements,” OAG stated.

“Rigsar’s willingness to undertake the dredging works on a cost-recovery modality basis came as a saving grace to the desperate thromde authority. Although the thromde invested zero, the project was taken up at Nu 65M, for the presence of accumulated bounders and commercial scope it offered if one could substantially invest in it,” it stated.

Notwithstanding the economic scale of the investment, Rigsar taking up the unwanted project should be morally applauded, as, after that, the riparian made no cries for help to save their lives and properties, the OAG noted.

OAG also noted sections of the Local Government Act 2009, where Section 277 mandates the ES to plan developmental activities and explore necessary funds for their executions. According to the OAG, the ES through a note-sheet on January 6, 2017 to the finance ministry, rightfully sought both the financial support of Nu 4.502M for the initially proposed 250m gabion wall and the permission to award the work directly to RCPL stationed at the site and willing to complete the work before monsoon. “Following the usual tendering process under PRR, the employee could have only a month’s time to complete the wall,” it stated.

“Putting up of note-sheet to the finance ministry for approvals of the fund with unambiguous request to allow the work to be awarded directly to Rigsar, and following up on it with authorities cannot be construed as unusual or collusive acts, unless substantial undue material gains made can be proven against the accused,” OAG stated. “As no material gain could be proven in the present case, the perceived opinion cannot substitute the material evidence required to prove, beyond doubt, the proposed offence against each accused.”

OAG also supported the ES reasoning that as the ex-officio chairman of the tender committee its was his duty to call members, adopt agenda, maintain decorum and enter the majority decisions taken by the committee. “It is too farfetched to allege the committee’s decision as that of the chairman, specifically when there were no complaints of imposing unilateral decisions by the chairman. Hence, the decisions of the committee to increase the length of the gabion wall from 250 meters to 450 meters and award it directly to Rigsar cannot import illegal culpability on the ES.”

OAG also found that Rigsar’s proposed design with the increased length, from 250m to 450m, was found to be more relevant to ground reality need of the Thromde’s Technical Review Committee.

With regard to the alleged appropriation of additional fund of Nu 7M from Khariphu road construction, the thromde finance officer, who was also a member of the committee, had clearly stated to the ACC that the fund used was from the “Block Grant” which the thromde was empowered to prioritise its use on a need basis. “The ES cannot be found culpable for unauthorised exercise or abuse of his official functions for appropriating the block grant that was legally permissible,” OAG noted.

On the Nu 25,000 alleged bribery, the AG also stated that the printout copy of the SMS text sent by ES to the Rigsar ED is self-speaking that money was borrowed at applicable banks’ interest rate. “That fact is corroborated by the borrower’s refusal to receive it in cash payment and having made the lender deposit it fully into his personal bank account is conclusive on the sincerity of the borrower’s intent,” OAG noted.

“The third party’s statement to the investigation on the payment receipt confirmed the stated purpose for borrowing.”

Meanwhile, an ACC official said that the commission hasn’t received the letter from OAG.

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