The Commission of Inquiry called former Education and Culture Minister Myron Walwyn for a hearing on July 1 concerning an unfinished project to build a perimeter wall around Elmore Stoutt High School starting in 2014.
COI Counsel Bilal Rawat began by recapping a hearing earlier in the week with Auditor General Sonia Webster, during which the commission reviewed her 2018 report that blasted the wall project for budget overruns and contract splitting, among other issues.
In the report, Ms. Webster alleged that the ministry broke the law when constructing the incomplete wall, overspending and ultimately failing to obtain good value for taxpayers’ money in part because the project was split into more than 70 work orders and 15 petty contracts.
At the time the report was released, Mr. Walwyn hotly disputed many of its claims, and last week he repeated similar arguments when questioned by the COI.
Involvement
In its questions, the COI reviewed the decision-making process for the project in detail.
Commissioner Sir Gary Hickinbottom, for instance, asked Mr. Walwyn to explain his role in the project.
In response, Mr. Walwyn claimed full responsibility only for the first phase of the construction, which the report notes began in December 2014 and entailed fixing the “most problematic areas” on the western perimeter.
Mr. Walwyn confirmed that this initial work was done using 11 work orders costing $96,000 in total.
A funding request for the second phase was submitted to Cabinet in February 2015, estimating the total needed to complete the bulk of the construction at $828,000, according to the auditor general’s report.
Mr. Walwyn, however, disputed the auditor general’s claim that his ministry had brought the proposal to Cabinet, telling the COI that only the Ministry of Finance had the authority to bring contracts exceeding $100,000 to Cabinet.
He explained that the Ministry of Education and Culture was the “executing arm” but not the primary ministry overseeing the project, and he said his ministry was only responsible for providing the Ministry of Finance with background for the larger wall proposal that the Ministry of Finance later brought to Cabinet.
Waiver
Mr. Walwyn also took issue with the report’s claim that “Cabinet approved funding and waived the tender process to allow use of petty contracts.”
To support his argument, he offered a draft of a Cabinet paper dated Jan. 19, 2015 that sought “exemption of waiver of tendering process for construction, memorandum by the Minister of Finance.”
When Sir Gary asked if that meant using petty contracts, Mr. Walwyn said the Cabinet order “gives permission for you to use petty contracts but to also use work orders and purchase orders in relation to different suppliers and contractors.”
He added that the report’s summation that “Cabinet approved funding and waived the tender process to allow for the use of petty contracts” didn’t give a “full picture” to the approach for funding the project.
Mr. Rawat examined the Cabinet document presented by Mr. Walwyn and described it as a “peculiarly drafted decision” but opted not to read it in entirety because of confidentiality concerns.
Project oversight
Asked about the auditor general’s claim that his ministry outsourced duties to an independent contractor without adequate oversight by the Ministry of Finance Project Management Unit or Public Works Department, Mr. Walwyn said SA Architect, headed by Steve Augustine, was there to offer external support while an internal assistant secretary shared responsibility for the project.
“The Ministry of Finance’s Project Management Unit — at the material time the Project Unit — was in its embryonic stages,” he said. “It wasn’t fully constituted at that time. I do not believe that anybody in the Ministry of Education — none of the technocrats — would have told the Project Unit to get lost, because we were taking whatever help we could get.”
The Public Works Department, he added, typically doesn’t offer such support to ministries.
Asked about his own relationship with the firm, Mr. Walwyn denied having any prior personal or professional connections with the architecture company and spoke highly of its reputation.
“So based on his efficiency over the years, the bill of quantities he would put out, the responsiveness, I just trusted what he was doing, and he earned that trust,” he said. “So there was never really an issue when it came to renewing because we’re seeing good results that we were pleased about.”
Mr. Rawat then noted, “One of the criticisms that emerges from the auditor general’s report is that the bill of quantities was effectively inflated. The figures were just too high.”
He asked who within the ministry would have the skills and knowledge to critically assess the bill.
Mr. Walwyn pointed to the internal assistant secretary and the finance and planning officer.
“It would have been difficult, because we wouldn’t have had — if you’re asking if we had a third eye, the answer would be ‘no,’” he said.
Project funding
Mr. Rawat noted that the SA Architect project manager was paid a total of $265,000 for the wall project and others under the ministry even after the wall construction “ground to a halt.”
He also asked the minister to shed light on payment through petty contracts, but Mr. Walwyn said he wouldn’t have specific knowledge of project funding at such an “intimate” level.
“What I can say to you is that the contract — the project did not stop for lack of funds. That’s not what happened,” he said. “The government made a conscious decision through the minister of finance to stop all projects at that particular time while the wall was being built.
The government was experiencing some cashflow disputes, so every single project that was being done by the government was halted. So to suggest that the project stopped for lack of funds is not true.”
He added that this project wasn’t singled out and stopped for a lack of funding.
The minister also noted that SA Architect was paid for work on the wall in addition to work it was already doing as part of a larger revamp of the school.
70 contracts
Mr. Rawat also asked Mr. Walwyn for a response to the auditor general’s claim that the work was divided by area segment and work type, engaging 70 contractors using 15 petty contracts and 64 work orders to build 1,562 feet of wall, with some individuals receiving multiple engagements.
Mr. Walwyn said he partially agreed but couldn’t confirm or deny the granting of multiple contracts to one individual.
“What I probably could see as a possibility would probably have been if somebody might have worked on the first portion that was done in 2014 December and then perhaps got a second opportunity to work on the bigger project,” he concluded.
Citing the auditor general’s report, Mr. Rawat said the Public Finance Management Regulations require government officers to “get a list of prequalified contractors from the Ministry of Finance for procurement services and construction works where there has been no tender process.”
He then quoted Ms. Webster saying that the wall contractors “were selected by the minister of education and culture. The assistant secretary who provided project liaison services within the ministry advised that the contracts and work orders sections and amounts were assigned to individuals based only on instructions received from the minister.”
Asked to respond to this claim, Mr. Walwyn said, “Certainly in practice, I don’t know if any ministry goes to the minister of finance or for a list of pre-qualified contractors. I don’t think that that happens in practice. I’ve never heard of it, and I have never seen it happen.”
Sir Gary called it “slightly concerning” that ministries don’t comply with the Public Finance Management Regulations.
Mr. Walwyn responded that the then-premier authorised all ministers to sign contracts under $100,000, and said he doesn’t believe a list of qualified contractors even exists. He did later note, however, that he selected workers from a list of people interested in working under petty contracts.
Lacking licences
Of the 70 project contractors, the auditor general found that only 30 had their construction trade licences, Mr. Rawat noted.
“That obviously goes to an important question of whether the ministry’s getting value for money and whether the ministry is actually engaging with contractors that could actually do the job,” he said.
Mr. Walwyn denied that anyone brought to his attention the lack of licences, but he claimed they weren’t required for a work order in any case.
When it came to selecting those 70 contractors, Mr. Walwyn again noted that the premier gave permission to assign individuals to projects through sub-$10,000 contracts.
“In this case, though, you were beyond ‘petty contract’ territory, weren’t you?” Mr. Rawat asked. “In reality, this was a major contract?”
The minister responded, “I wouldn’t say that at all. I would say that I was acting within the authority given to me by the Cabinet.”
He continued, “The thing is, commissioner — and I wouldn’t shy away from it at all — in the community in which we live, we have a number of skilled persons. They may not be on a large scale in terms of being able to do big projects, but we have a history of being able to build things in this country. And we try to give opportunities to those persons to assist them who have the skills to assist us with certain works that can be done, and that happens.”
Segments
Mr. Rawat read one section of the report that detailed how the cost of some wall segments were inflated by more than double the authorised cost in some instances, leading to over-expenditure for the overall project
Asked to respond, Mr. Walwyn said he was angered by the suggestion of cost inflation because he was so trusting of the contractors.
“I don’t think I even visited the site because I trusted the folks to do a good job,” he said.
As to why the project as a whole didn’t go through the tender process, Mr. Walwyn said “safety was a major issue at the compound,” which was why his ministry rushed to allocate the funds as the end of the fiscal year approached.
“The tendering process in the country needs to be looked at,” he added, claiming the process can inflate prices.
Early disclosure
At the conclusion of the hearing, Mr. Rawat asked Mr. Walwyn if he disclosed the auditor general’s report to the press before it was laid in the House of Assembly, which he confirmed. The counsel asked if this action was prohibited as suggested by Ms. Webster, but Mr. Walwyn said he couldn’t point to a specific law against it.
“I did apologise for releasing the report because the premier spoke with me on it and showed me that perhaps that should not have been the best course of action, and I apologised for that,” he said, though he had argued at the time that laying the report before the House was simply a procedural step.
Asked if anyone would have known the details prior to the leak, Mr. Walwyn responded, “You have to spend a little bit more time in Tortola. Everyone knows everything.”