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Govt shells out $700k in court building settlement

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Expensive settlement: The Dame Lois Browne Evans Building on Court Street (Photo by Mark Tatem)

Bermuda taxpayers have been slapped with a $700,000 bill as a result of the settlement involving the building of the Dame Lois Browne Evans Building.And, Mark Pettingill, the Attorney General, revealed Government could have been forced to pay nearly three times that amount to architects Carruthers Shaw and Partner.CS&P sued the previous Government for $1.4m in 2010 after being taken off the project, and Mr Pettingill said that after careful review Government had ‘no real defence to the claim’. He also said that a counterclaim made by the PLP in 2010 was ‘without merit, lacking any factual foundation or evidential support’.Ultimately, the AG, who disclosed the information in a Ministerial Statement in the House of Assembly, yesterday, said he felt the settlement was in Bermuda’s ‘best interests’.Opposition MP, Derrick Burgess, who was Public Works Minister when the new court building was built, indicated that he will submit questions on the AG’s statement next week.However, at one point, he objected to the statement being read without prior notice.Last night, CSP managing partner Craig Goodman told The Gazette: “We’re pleased to have it settled. It has been a long process and somewhat unpleasant for a good part of it, which doesn’t reflect the great relationship we had with the Ministry, and the people there when we were working on the project.“So, the last five or six years have been unpleasant, but it’s nice to finally get a settlement.”Yesterday, Mr Pettingill gave the House a detailed break down of the settlement, and the issues that surrounded it.“The settlement also includes payment of debts owing under Carruthers, Shaw and Partners’ design contract in relation to the Government laboratory construction project at Marsh Folly,” said Mr Pettingill.“Approximately $200,000 of this $700,000 settlement can be apportioned to payment of that outstanding debt.“This settlement involves the payment of a substantial amount of money, and comes at an unfortunate time, given the difficult financial straits this Government finds itself in due to the policies of previous administrations.“In such circumstances, it is incumbent on us as responsible leaders, and custodians of the public purse, to advise not only this House, but also the people of Bermuda, of the reasons why this settlement has been entered into.”Mr Pettingill also gave an extensive overview highlighting the background that led to this settlement.CS & P was taken on as the design consultant for the Bermuda Court Master Plan and Police Station Project in 1997. They were contracted as the consulting architects “to finalise the design of and oversee the administration of the construction contract”.Landmark Lisgar Construction Limited, now LLC Bermuda Limited, was contracted to construct the building on December 5, 2007. Work began on January 21, 2008.The Minister noted that then Auditor General Larry Dennis submitted a Special Report in 2009 citing “serious concerns” with respect to the project”.That report said it “continued behind schedule”, and on several occasions, “the Ministry’s Project Manager, Certifying and Chief Architects expressed concerns about the legitimacy of some of the costs being claimed by Landmark Lisgar”.Mr Pettingill pointed out that the “first seven payment requests submitted by Landmark Lisgar for work to October 31, 2008 totalled $12.8 million”.“Of this amount, the Certifying Architect refused to certify more than $2.7 million, usually because the claims were not supported by adequate documentation (suppliers’ and subcontractor’s invoices etc), said Mr Pettingill.“However, on the Permanent Secretary’s instructions, $384,000 of these unsupported claims were processed.“It should be noted here that Government policy (Financial Instructions) prohibits the Ministry paying construction cost claims that have not been certified by a certified architect, and this policy is also included in the contract,” he said.“I see nothing in the new contract to prevent $2.7 million that was rejected in the first seven payment requests from being filtered into the unsupported claims in future requests,” he added.The Public Works Ministry was assisted by the late Julian Hall in the negotiations to reach an agreement “as to what compensation CS&P would be entitled to” as a result of the termination.Said Mr Pettingill: “As these negotiations progressed, it appears that the parties came very close to reaching a settlement on virtually identical terms to those in the current settlement agreement.“Sadly, however, due to Mr Hall’s deteriorating health and untimely passing on July 19, 2009, the negotiations stalled.”He noted that new attorneys were instructed, “but despite numerous attempts by CS&P to engage the then Government in meaningful settlement discussions, no progress was made.“As a result, on October 1, 2010 CS&P filed a Specially Endorsed Writ of Summons in the Supreme Court claiming $1.4 million in damages together with interest and costs. On April 18, 2011 the Ministry filed a Defence and Counterclaim.”After a “careful, objective review by a number of senior attorneys” it was determined that CS&P’s claim “was valid and would succeed”. The counterclaim filed by the Ministry was “considered to be without merit, lacking any factual foundation or evidential support”.“Having been advised of that conclusion, this Government decided that it was in the best interests of all parties to return to the negotiation table,” the Minister.He concluded: “Had we not returned to the negotiation table and had we continued along the path set by the previous Government, having regard to the fact that there was no real defence to the claim and that the counter claim filed would in all likelihood have failed, the pursuit of this litigation would have cost the Bermuda taxpayer in excess of $2 million in damages, costs, interest and legal fees.“In those circumstances, the decision to settle the matter was clearly in the best interests of Bermuda as a whole.”

Controversy: The Government laboratory at Marsh Folly. (Photo by Mark Tatem)
Attorney General Mark Pettingill (Photo by Mark Tatem)
Big settlement: The Dame Lois Browne Evans Building on Court Street. (Photo by Mark Tatem)