The Commission of Inquiry revisited the auditor general’s special report on the Elmore Stoutt High School wall on Monday, calling former Education and Culture Minister Myron Walwyn to answer various questions about the project.
During the proceeding, COI Counsel Bilal Rawat posed eight potential criticisms, many of which stemmed from previous testimony about the project from Mr. Walwyn himself as well as Assistant Secretary for Projects Lorna Stevens and Finance and Planning Officer Carleen Jovita Scatliffe.
Early in the hearing, Mr. Rawat noted that the first phase of the project appeared to have been scaled down below $100,000 to avoid the procurement process.
The original plan submitted to the Town and Country Planning Department quoted a cost of $156,000 for a 180-foot section of wall, Mr. Rawat said.
But instead, a 120-foot section was later built using a series of work orders totalling less than $100,000, according to the counsel.
Ms. Stevens had previously testified that Mr. Walwyn made the decision to scale the section back to 120 feet, and that he provided a list of 11 contractors, Mr. Rawat added.
The project began in December 2014, and 11 work orders were distributed totalling $96,727.40, according to the auditor general’s special report.
In a written response to the commission, Mr. Walwyn rejected the COI’s criticism on this point, disputing the claim that he changed the scope of the project and explaining that the first phase of the wall was urgent. On Monday, Sir Gary pressed the issue.
“We know the plan was to build 180 feet of wall at $150,000. That was the plan that was submitted to the Planning Authority,” he said. “But somehow that was reduced to 120 feet, which coincidentally came in, in terms of costing, just below $100,000, and that meant no major contract, no engagement with the ESHS, no engagement with Cabinet. It could be done with work orders.”
Mr. Walwyn agreed. Sir Gary said he couldn’t understand how a 180-foot wall could be scaled back to 120 feet.
“A 120-foot wall will not fill a 180-foot gap,” he said.
Mr. Walwyn responded, “That’s not something that I would know. I wouldn’t get into those technical things.”
He added that 60 feet is a big difference, but that the 120- foot wall “smartly fits” into the area of concern.
“If you go and you look at where that wall starts and ends, it ends exactly right next to the gate of opening the school, so it fits right there,” Mr. Walwyn said. “There is something wrong somewhere along the line with those numbers. It doesn’t make any sense.”
Mr. Walwyn added that the commissioner shouldn’t solely rely on the auditor general’s report.
“We were trying to prevent marijuana from coming in the school through the mesh fence,” he said. “That’s why the wall was built quickly.”
Sir Gary said he found it difficult to believe that the first phase falling just under $100,000 was “purely a happy coincidence.”
Mr. Walwyn said the permanent secretary was doing the best she could within budget and without having to ask for funds from the government.
Another potential criticism noted that the first phase was completed using work orders instead of contracts, which could have provided better value for money.
Mr. Walwyn admitted that the phase was done with work orders given to 11 contractors, but he described the process as a common practice in the territory that pre-dated his term in office.
“Successive governments use the work order scheme to allow more persons to participate in the economy, and that is what was done,” he said.
He also agreed with Mr. Rawat’s contention that Mses. Stevens and Scatliffe weren’t involved in his decision to use work orders.
Another potential criticism noted that no differential cost analysis or implementation plan was carried out for the first phase of the wall.
In response, Mr. Walwyn said Ms. Stevens worked within the budget of the ministry to create an “implementation plan.”
He added that she would have done some measure of analysis to suggest a budget below the $156,000 quote. He agreed, however, that no differential cost analysis was undertaken.
Mr. Rawat then moved on to phase two of the project and stated another potential criticism.
“The information provided to Cabinet in respect of the waiver of the procurement process presented an artificial figure for the likely cost of the project,” Mr. Rawat said. “The minister knew or alternatively deliberately shut his eyes to the fact that the figure was artificial.”
Cabinet was told that the phase two work would be carried out by one company with a cost of $828,000 for the entire perimeter wall of 2,695 feet, Mr. Rawat said.
“Now, that doesn’t account for the fact that you’d built part of the wall in phase one,” Mr. Rawat said. “It doesn’t account for the fact that the auditor general measured the wall at 1,562 feet.”
Mr. Rawat added that Ms. Stevens testified that she had a pivotal role in providing the Cabinet paper for the project and that the ministry knew costs would increase above $828,000 because of the plan to divide the money between several contractors.
She also told Mr. Rawat that the minister was involved in those discussions.
Mr. Walwyn, however, disputed that account, saying he thought at the time that the work would be carried out by one contractor. He added that he didn’t know that awarding petty contracts would have shifted the cost.
“I had no knowledge of that,” he said. “We would not have sent that paper for $828,000 if we had that knowledge. That would not have been right to do.”
No tender process
Mr. Rawat then raised another potential criticism, suggesting that the minister intended to carry out phase two of the project without a procurement process and that there was no cost analysis.
But Mr. Walwyn said he wasn’t involved in the process for the second phase.
“If for any reason the [Cabinet] paper was deemed insufficient in terms of [analysis], it should have been sent back to the Ministry of Finance with those notions to the Ministry of Education to redo or improve upon,” he said.
Mr. Walwyn went on to say that Cabinet’s decision to waive the tender process was designed to avoid cost overruns.
“In my experience here in the [ VI], when you put something out for tender, when it’s government work … the cost of the project goes up two- and three-fold because they hate government,” he said.
Contract-splitting
In another potential criticism, Mr. Rawat suggested that the use of work orders resulted in increased costs and undermined the quality of work. He also suggested that Mr. Walwyn knew this would be the case.
For the first phase of the project, Sir Gary added, Mr. Walwyn could have given one petty contract under $100,000 instead of splitting the $96,000 cost between 11 work orders.
Mr. Walwyn responded, “It could have been done that way, but the Public Finance Management Regulations give powers for ministers to submit work orders. If the power resides in the Public Finance Management Act and the regulations, and the minister uses that power, then to call that contract as if something is wrong is not right because that power should not exist in the law.”
For the second phase of the project, he claimed that Cabinet, not he, decided to award multiple contracts.
But Mr. Rawat noted that Mr. Walwyn nevertheless chose all the contractors for both phases and suggested as a potential criticism that he may have done so with an improper political motive in the election year of 2015.
Mr. Walwyn admitted he selected the contractors, but said it was Ms. Stevens’ duty to vet them and make sure they had the required documents to operate.
In phase two, 64 work orders were awarded. Ms. Stevens, however, said in July that the contractors were not required to produce documents before accepting a work order.
Mr. Walwyn said the failure to vet the companies was a systemic issue.
Tender circumvented
Mr. Rawat then raised another potential criticism, suggesting that the project was carried out in a way that circum- vented procurement processes from the start.
As part of the same criticism, he suggested that Mr. Walwyn may have premeditated the circumvention and that a procurement process was not seriously considered.
But Mr. Walwyn said this criticism was unwarranted and unsupported by the evidence.
“Premeditated: … That’s a serious over-reach,” he said. “I would say I accept responsibility for phase one by issuing work orders. I have not shied away from that.”
In response to another potential criticism — that he failed to maintain oversight and control of the project — Mr. Walwyn said that he was not responsible for maintaining oversight.
“That’s what the technical folk are for,” he added.