Calamity at Caymanas Track - OCG lured into unauthorised probe

Gordon Robinson, Contributor

There is no better example of the folly of statist policies driving an economy than the calamity that is Caymanas Track Limited (CTL).

The recent announcement of prize-money cuts for the season's premier race meet is tragic. The reason given (no sponsor could be found) is a damaging admission of desperate decline and a monument to the mediocrity that has propelled the mismanagement of this state-owned corporation. If you can't find a sponsor for your best product, surely you're a dead man walking.

CTL's demise began when a commercially oriented board of directors, headed by the Honourable Patrick Rousseau, OJ, was summarily dismissed based on an Office of the Contractor General's report that was comprehensively separated from reality. Worse, it involved matters that were none of the contractor general's business, according to his own procurement guidelines.

Why do I blaspheme against our national-hero-in-waiting, the contractor general? I recognise I'm begging for the usual stream of invective normally directed at anyone daring to be even mildly critical of his conduct, but such is life. For those readers willing to discard rose-tinted spectacles temporarily and face facts, I'll begin by setting out his statutory functions.

First, his duty is to monitor the award of government contracts to ensure fairness. Section 4 of the Contractor General Act (CGA) includes:

"(1) Subject to the provisions of this act, it shall be the function of a Contractor General.

(a) To monitor the award and the implementation of government contracts with a view to ensuring that -

(i) Such contracts are awarded impartially and on merit; (ii) the circumstances in which each contract is awarded or, as the case may be, terminated, do not involve impropriety or irregularity; (iii) without prejudice to the functions of any public body in relation to any contract, the implementation of each such contract conforms to the terms thereof ... ."

powers of access

Please note the only action word relating to the contractor general is "monitor".

His wide powers of access and to information are to further that duty - to monitor. He is not permitted to interfere with a contract award or to substitute his idea of best practices for those of the public body awarding the contract. Insofar as the monitoring of pre-contract processes is concerned, the contractor general has no power to report or refer anything to anyone.

But what if procurement procedures are breached and a corrupt contract awarded? The CGA gives the Office of the Contractor General (OCG) retrospective power to investigate any contract to see if any such breach has occurred (see Section 15):

"(1) Subject to Subsection (2), a contractor general may, if he considers it necessary or desirable, conduct an investigation into any or all of the following;

(c) The award of any government contract; (emphasis mine)"

There can be no investigation before the award and, importantly, no power to report or refer to other state agencies arises until an investigation is finished. The statute is clear that if the OCG finds anyone culpable, it must first send the report to that person. See Section 20:

" (1) After conducting an investigation under this act, a contractor general shall, in writing, inform the principal officer of the public body concerned of the result of that investigation and make such recommendations as he considers necessary in respect of the matter which was investigated.

(2) If any report of a contractor general reflects adversely upon any person, the contractor general shall, so far as practicable, inform that person."

If the OCG finds, as a result of an investigation (not monitoring) a breach of duty or misconduct, he may report it to "the person or persons competent to take such disciplinary or other proceeding as may be appropriate against that officer or member and in all such cases shall lay a special report before Parliament." (Section 21). Note carefully, this section contains no authority to publish to the media or the World Wide Web.

But Section 28 imposes a duty to make annual reports to Parliament with a peculiar provision in Subsection (4):

"(4) A contractor general may, in the public interest, from time to time publish in such manner as he thinks fit, reports relating to such matters as are mentioned in Subsection (2) and any case which is the subject of a special report under Section 21, but no such report shall be published until after it has been laid pursuant to Subsection (3)."

Subsection (2) provided:

"(2) A contractor general shall submit to Parliament an annual report relating generally to the execution of his functions and may at any time submit a report relating to any particular matter or matters investigated, or being investigated, by him which, in his opinion, require the special attention of Parliament."

inflammatory nature

Bearing in mind the inflammatory nature of some contractor general findings, it is understandable that Parliament would restrict the scope of publication. Parliament obviously considered that only in rare cases "in the public interest" would further publication be warranted. If everything was intended to be automatically circulated, there would be no need to separate this special 'public-interest' publication from the standard publications in Subsection (2).

The legislative intent is pellucid. First dibs to act on these reports in the public interest go to Parliament (that's its job). Only if Parliament (or the responsible minister) does not so act, and wider circulation could force proper parliamentary responses would the contractor general be permitted to publish to the general public. Otherwise, Parliament would have sanctioned a contractor general being allowed to smear citizens' reputations willy-nilly, with impunity, and without any judicial input.

Now, let's closely examine his widely published CTL 'report'. What was he investigating? Did he have the right to investigate? Should he have been merely monitoring? Should he simply have stayed at home?

Readers should recall that Rousseau was accused of "conflict of interest" as chairman of CTL and of SportsMax's parent company (IMC) in the "award" of a contract to IMC/SportsMax to transmit English racing signals to CTL to promote betting on those simulcasts.

It is an undisputed fact that at the time that his report was disseminated, CTL had not entered into any contract with SportsMax/IMC. As such, there was nothing to investigate, and the OCG ought still to have been in no more than "monitor" mode, with no power or duty to report anything. But, was there even something to monitor?

It's factual that negotiations with SportsMax/IMC were well advanced. Also, a similar contract was concluded for racetracks not licensed to SportsMax/IMC with Barbadian agents of British copyright holders to whom CTL paid large monthly fees.

So, we need to look at the true nature of these contracts to see why I say the OCG was poking its statutory nose into matters that did not concern it.

Now, none of these "contracts" (including the incomplete SportsMax/IMC deal) involved any broadcast by CTL of any signal. They concerned the receipt by CTL of simulcast signals owned and broadcast by overseas racetracks which decided to license and appoint sole Caribbean agents to sell (or, more accurately, sublicense) their rights.

CTL had no roadworks to give out to political activist contractors. CTL was not "awarding" any contract. If CTL did not broadcast overseas races live, it could kiss the overseas betting market goodbye because the bookies had purchased their own sublicence and were broadcasting overseas races live to the same market. Failure to take the signal would mean surrendering that market to the bookies. No one but the appointed agent (SportsMax/IMC) could grant CTL the right to broadcast these races live. CTL had no contracting choice (outside of negotiations on price) but to take it or leave it. In that scenario, CTL "awards" nothing, but is the "awardee" of the sublicence.

One of the earliest actions by the board that replaced the Rousseau board was to sign the identical SportsMax/IMC contract without a murmur from a living soul.

So, what was the fuss about? And what business was it of the contractor general since CTL had not awarded and wasn't awarding any contract? It is alleged that Rousseau failed to disclose a conflict of interest. Give me a break! Even the OCG concedes that Rousseau immediately disclosed his interest in SportsMax and withdrew from the process in both companies. He was crucified for non-disclosure of his interest in IMC, Sportsmax's parent. Well blow me down! Somebody must be high!

SportsMax approached CTL; Rousseau immediately withdrew and instructed that nothing be communicated to him. Sometime later, SportsMax's lawyers realised that the racetracks' Caribbean licensee was IMC not SportsMax and changed the contracts accordingly. Based on his original instructions, nobody told Rousseau, so how was he to make any further declaration? And why? He had already withdrawn.

So, Rousseau declared his interest in the subsidiary but not the parent of a company who wasn't being awarded any government contract but simply permitting a government company access to an essential marketing corollary for its product. Jeez Louise! Out of this molehill, the contractor general created a mountain that not even Mohammed would dare approach.

Finally, readers should go to the following Internet link:

http://www.ncc.gov.jm/website_files/gpphandbook_ver3.pdfwhere they'll find that "procurement of media-related services" is specifically exempted from the Government Procurement Procedures [see National Contracts Committee's Procure-ment Procedures Handbook Section No. S-1000, Part III (Exclusions); Item 10]. How can you treat the licensing of copyrighted material in the same way you would the repair of potholes?

unauthorised

Why did the contractor general allow himself to be lured into an unauthorised "investigation" of a phantom irregularity by vested interests with axes to grind and a penchant for mischief-making? Did he educate himself regarding this unique industry before plowing ahead threatening criminal prosecution right, left, and centre? Will he ever relent from making the threat of criminal sanction the foundation of almost every communication from his office, and the premature publication of allegations against citizens his standard operating procedure?

On these shifting sands, castles of allegations were built and circulated with the potential to ruin the reputation of a man who has given 55 years of unblemished practice as an attorney-at-law, and who is a member of the Order of Jamaica for selfless ser-vice to the nation. In these castles, a progressive board was summarily dismissed and a hurriedly put-together potpourri of industry interests inserted to introduce a contrary agenda.

It's been downhill ever since, including a magical windfall $100 million in 'new' purses, somehow rabbited out of a hat, having to be shoved back in as the chickens come home to roost. The grand statist achievement: no superstakes sponsor and a superstakes purse cut.

Like Michael Jordan, unbe-lievaBULL.

Peace and love.

Gordon Robinson is an attorney-at-law. Feedback may be sent to columns@gleanerjm.com.