OAG initiates reform in disputed construction of government projects

Office to review suspension orders to save cost and loss

Rinzin Wangchuk

In what could save time, resources and losses both to the government and those in the construction sector, the Office of the Attorney General (OAG) has come up with some “preemptive measures” to address systemic flaws resulting from investigation, prosecution and criminal trial in government construction-related disputes.

The OAG would consider and review the suspension order passed by relevant agencies and initiate preemptive and mitigation measures before the initiation of any criminal charges before the court of law. The office also decided that while every case needs to follow due process of law and thorough analysis, cases referred for prosecution must consider lifting of any suspension order so that irreparable harm or financial implications due to state prosecution are minimised.

In construction cases forwarded to OAG for prosecution, the OAG will, at the earliest, find if there is any suspension of contract work or properties attached, and accordingly advise the concerned agencies to resume the incomplete contract work or lift attached properties if appropriate.   

The OAG will also request relevant government agencies to carry out necessary intervention so that prosecution of cases and judicial proceedings will not cause delays in the execution of government projects. This will be initiated after consideration of any legal consequences or possible outcomes of the judicial proceedings.

The OAG determines the lawful suspension of the contractual works ensuing prosecution and the pendency of the trial should not hinder administrative authorities to legally task for re-tendering or the lawful completion of the remaining works if the OAG finds concrete evidence where it fulfills the burden of ‘proof beyond reasonable doubt’ of having a high probability of conviction of the corrupt act by the defendant.

Suspension of works and its resulting inability to complete the projects has entailed huge financial implications to the government, states the press release. “This Office observes that any further delay of not completing the project will not only escalate cost of raw materials over time, but also without preemptive actions, the material at the site, the woodworks and other works already executed at the project sites will become defunct, unusable and cause huge financial loss to the State,” the press release stated.

 

OAG issues 1st directives

In keeping with the reforms, the OAG yesterday issued directives to the Trashigang dzongkhag administration to continue construction of the remaining works of Merak BHU, dormitories at Bidung and Dungtse schools.

Constructions were suspended after Zangchong Construction & Dechen Construction failed to complete the projects. The dzongkhag’s tender committee terminated both the contactors on April 11, 2018.

Dechen Construction had quoted Nu 26.690 million (M) for the construction of two hostels in Dungtse Central School (CS) in Phongmey and Nu 13.980M for Bidung.

Before termination of the work, the contractor had carried out projects worth Nu 15.190M in Phonmey. There was an excess payment of Nu 5.112M for construction of two hostels in Dungtse CS, and Nu 6.641M in Bidung Lower Secondary School.

The dzongkhag forwarded the case to the Anti-Corruption Commission (ACC), which found that the contractors colluded with the dzongkhag site engineers and were liable for illegal and fraudulent practices.

While reviewing ACC’s findings, the OAG established that the termination of the works by the dzongkhag administration was done after the contractor failed to execute and complete the works.

The OAG, however, found that the construction works need not be under perpetual suspension owing to the failure of the contractors and pending criminal prosecution of the defendants. “Any further delay of the stalled works will have financial implications causing not only additional financial burdens but irrecoverable loss to the State,” Attorney General Lungten Dubgyur stated in the press release issued yesterday evening.

From the date of commencement of the investigation by the ACC since October 22, 2018, it took almost two years during which the works remained suspended.

The press release stated that since the suspension of the work by the dzongkhag authority was legally done, re-tendering of the works or the execution of the work could have been carried out without delay. However, the dzongkhag authority was refrained from executing the remaining works as the case was with ACC sent for prosecution to OAG.

The OAG established that the contractor has no legal basis or justifiable recourse to carry out the unfinished work due to the nature of prosecutorial offenses as charged.

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