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�Micheletti & Co. & Consar �Missing In Action� ��BIC Advice� Sidelined! A careful scrutiny of the observations and findings of the Economic and Organised Crime Office (EOCO) as contained in its February1, 2012 �Interim Report On Payment Of Judgement Debts Since January 7, 2009� which was presented to President J.E.A. Mills last Thursday, indicates that the �specialised investigative agency� (EOCO) had arrived at the conclusion that the Kufuor Administration had failed to pay Waterville for work done in 2006 relative to Stadia Rehabilitation towards CAN 2008. �Then again the refusal by the previous administration to pay Waterville when it had been clear that Waterville had done some work at the instance of the Government has led to a situation where interest accrued and loss of profit had to be paid for after mediation�, stated EOCO on page 13 of its �Interim Report�. The EOCO further indicated that �Documents studied so far indicate that these contracts were also terminated and Waterville put in a claim for a total amount of �21,569,946.71 for actual work done and financial engineering. Government then paid an amount of �11,935,706.55 for unexplained reasons, failed to pay the difference of �9,634,240.16. This amount was outstanding until the change of Administration in 2009, when Waterville, taking advantage of the dispute settlement clause of its contract with the Government went for mediation and was eventually awarded an amount of �25,000,000.00 to cover its outstanding amount and accumulated interest, among others. This amount was subsequently paid in 2010�. The mediation process referred to by EOCO was initialed during the tenure of Mrs. Betty Mould-Iddrisu as Attorney-General and Minister for Justice. Mr. Ekwow Awoonor of Awoonor & Co. was the sole mediator agreed upon between the Mills Government and Waterville. Waterville, according to the EOCO �Interim Report�, put in a claim for the following reliefs, among others: *��(b) An order for the payment of Euro 9,634,240.15 being the balance due on the works certified by the Government Project Consultant as value of work executed by Waterville (BVI) Ltd. As at the date of termination, i.e. 1st August 2006; *(c). Payment for the sum of Euro 3,123,754.56 being accrued interest at the rate of Eurobar plus 3 points as at June 2010; *(d) Interest on the sum of Euro 9,634,240.15 at Eurobar plus 3 points from 16th June, 2010 up to date of final payment; *(e) Payment of the sum of Euro 13,426,261.28 being loss of profits occasioned by the termination of the contracts; *(f) Interest on the sum of Euro 13,426,261.28 at Eurobar plus 3 points from 16th June, 2010 up to date of final payment; *(g) Euro 1,200,000.00 being legal fees; *(h) Euro 20,000,000.00 as general damages for breach of contract�� �Eventually however, the parties agreed that Waterville be paid an amount of �25 million in full and final settlement of all its claims against Government in the matter of the termination of the stadia contracts. This figure was converted into Ghana Cedis and finally settled/paid in 2011�, observed EOCO on page 7 of its �Interim Report�. However, documents available to The New Crusading GUIDE positively indicate it was patently wrong for Mrs. Betty Mould-Iddrisu and those who worked with her on the Waterville Claims, to have conceded to their (Waterville�s) claims that the Government of Ghana (GoG) had either illegally terminated their April 26, 2006 Contract(s) or failed/refused to pay them (Waterville) for work done before 2009. A key document; a letter dated October 24, 2008 signed by the then Chief of Staff and Minister for Presidential Affairs, Mr. Kwadwo Mpiani which was addressed to Mr. Dorino Marca of Waterville, clearly indicated to the latter that �after a thorough investigations of Waterville�s claim, we have confirmed that all payments due to all contractors on the three stadia, Ohene Djan, El-Wak and Baba Yara have been made by our Ministry of Finance to Micheletti and Consar. THESE PAYMENTS INCLUDED ALL SUMS OF DUE TO WATERVILLE�. Mr. Mpiani recalled that the total contract price for the rehabilitation of the Ohene Djan Stadium, executed by both Waterville and Micheletti was $38,873,477.50, and that out of that amount, the Consultant had certified an amount of $9,394,999.65 as being due to Waterville on August 23, 2006. �The Ministry of Finance has confirmed that all payments due for the Rehabilitation of Ohene Djan Stadium, including payment due to Waterville, have been made to the Contractor, Micheletti��, noted Mr. Mpiani. With regards to El-Wak Stadium, the total contract price for its refurbishment was $2,763,351.31 and the Consultant, as at the date of Mr. Mpiani�s letter (October 24, 2008) had issued certificates for all the work done by Waterville and Micheletti for the full contract price. �The Ministry of Finance has confirmed that all payments due for the Rehabilitation of El-Wak Stadium, including payments due Waterville, have been made to the Contractor, Micheletti�, stressed Mr. Mpiani. The total contract price for the rehabilitation of the Baba Yara Sports Stadium, executed by Waterville and Consar, was $35,943,320.44. Out of that amount the Consultant had certified an amount of $10,207,272.94 due to Waterville on August 23, 2006. �The Consultant had issued certificates for all the work done by Waterville and Consar for the full price. The Ministry of Finance has confirmed that all payments due for the rehabilitation of Baba Yara Stadium, including payments due Waterville, have been made to the Contractor, Consar�, articulated Mpiani. Mr. Mpiani alerted Mr. Marca that the payments to the two contractors on behalf of Waterville were consistent with the agreement between Waterville and the Government regarding the manner of payments to Waterville after the termination of the Waterville Contract(s). Against that backdrop, Mr. Mpiani served the two Contractors, Micheletti and Consar, with copies of his October 24, 2008 letter noting that ��we are by a copy of this letter, instructing them to remit all payments due to Waterville to you immediately. By copies of this letter, all relevant parties are being informed of the result of this very painstaking investigation�. The others copied were the Minister of Education, Science and Sports, the Attorney-General and Minister of Justice and the Minister of Finance and Economic Planning. Significantly, there is no record of any reactions from Waterville, Micheletti and Consar to Mr. Mpiani�s letter of October 24, 2008, and yet come early 2009, in the wake of a change of government, Waterville re-surfaced to put in a claim for nearly �33 million which was eventually negotiated down to �25 million through mediation agreed to by the Mills Administration and Waterville. There is also no indication that Micheletti and Consar were invited to make an input and explain whether they paid to Waterville all its due, and if not, why not. �It is in these circumstances that the payment of �25m judgement debt to Waterville smacks of duplicity and fraud. The EOCO should have done a more thorough screening of the mediation process and its outcome than it appears it did. I smell a big, fat rat in there�, quipped a highly-placed official at the Ministry of Finance and Economic Planning (MoFEP) who pleaded anonymity. With regards to Waterville�s claim for payments of the sum of Euro 13,426,261.28 being loss of profits occasioned by termination of contract and Euro 20,000,000.00 as general damages for breach of contract placed before the mediator for settlement negotiations, some legal pundits who spoke to The New Crusading GUIDE felt the legitimacy of those claims is suspect in view of the documentary evidence to the effect that Waterville, after its initial protest (in a letter dated August 7, 2006 signed by Lawyer Kwame Tetteh) at the Kufuor Administration�s decision not to approve the April 26, 2006 contracts, acquiesced and accepted the decision by Government to terminate the agreements as reflected in a September 15, 2006 letter Waterville�s Managing Director, Massimo Marca wrote to the Government of Ghana via the Secretary to the Cabinet which was copied to the Chief of Staff, Special Assistant to the President, the Attorney-General, Minister of Education, Science and Sports, Minister of Finance and Economic Planning, the Chairman of the Local Organisation Committee (LOC), Building Industry Consultants, and Mr. Kwame S. Tetteh of Tetteh & Co. �CONSCIOUS OF THE DELAY THAT SUCH LEGALITY WOULD ENSUE AND THE ADVERSE IMPACT UPON THE CAN 2008 TARGET WE DECIDED, WITHOUT PREJUDICE TO OUR ACCRUED ENTITLEMENTS, TO ACCEPT THE DECISION OF THE GOVERNMENT TO TERMINATE THE AGREEMENTS�, emphasised Mr. Marca in the letter under reference. Waterville�s acceptance of the decision of the Kufuor Administration not to approve the April 26, 2006 Contracts is again reinforced, in a March 9, 2009 letter to Betty Mould-Iddrisu, by their Solicitor, Mr. Kwame Tetteh when the latter, in pursuit of Waterville�s claim, wrote that ��Our client moved to site but after substantial execution of the contracts, GoG proposed, and our Client ACCEPTED reluctantly in view of time constraints, to hand over each site to Micheletti & Co and Consar Ltd. (together �the Sub-Contractors��. �How a company which had twice clearly indicated its acceptance of a decision by a previous Government to terminate contracts on two occasions; first on 15th September, 2006 and subsequently on 9th March, 2009, could still get a mediator to negotiate the payment of a huge amount of money to it, for alleged breach and/or termination of contracts which never became effective by a new government, beats my imagination. It is mind boggling and bizarre�, observed the same highly-placed MoFEP official who spoke to our Special Investigations Team (SIT) on condition of anonymity. �Both levels of Waterville�s Claim; the claim for payment of outstanding money owed them and accrued interest and the claim for general damages for termination/breach of contract, are unsustainable in the face of official records available at MoFEP and the Controller & Accountant General�s Department. The Authorities must check how much money was paid to the two Sub-Contractors, Micheletti and Consar, and it will become obvious that Waterville cannot make claims on the Government of Ghana. If anything went wrong with the payment of their �accrued entitlements�, then they should deal with the Sub-Contractors, and NOT the Government of Ghana�, added the MoFEP Official. The agitated MoFEP Official expressed surprise that the main thrust of an advice/report given by the Supervising Consultants of the CAN 2008 Stadia Rehabilitation Project, the Building Industry Consultants (BIC) appears to have been either ignored or treated lightly by both Attorney-General Betty Mould-Iddrisu and EOCO. The BIC advice/report dated 16th March, 2010 informed Government that the following amounts: �9,061,359.53 (Ohene Djan); �1,842,192.79 (El-Wak) and �9,587,897.05 (Baba Yara) totaling �20,491,449.37 �were certified as due to Waterville Holdings (BVI) Ltd. and PAID by the Government to M/S Micheletti & Co. Ltd. For Ohene Djan and El-Wak stadia and CONSAR Limited for Baba Yara stadium�. �Details of date of payment can be verified from the Ministry of Finance and Economic Planning or the Controller and Accountant General�s Department or the Bank of Ghana�, advised BIC. The BIC further noted that Waterville seemed to have abandoned �project engineering fees� (�1,663,722.01 � Ohene Djan), (�133,673.93 � El-Wak) and (�1,550,674.26 � Baba Yara) which they (Waterville) had claimed during the Kufuor Administration and had preferred the then Government to take a decision on, and were now focused on �the amount (�20,491,449.37) in item(a) which the contractors, Messrs Micheletti & Co. Ltd. and Consar Ltd. were instructed to pay Waterville�. �Our advice to the employer is for the employer to verify whether these amounts were paid to Waterville Holdings (BVI) Ltd.�, concluded BIC. Did the Employer (Government of Ghana represented by the Ministry of Youth and Sports) undertake the verification exercise suggested by the BIC before Waterville was paid the judgement debt of �25m in 2011? Did they or did they not? Watch out for the details in subsequent editions of The New Crusading GUIDE. Stay tuned for an in-depth technical and professional analysis of the effect of a concurrent approval of contracts given by a Central Tender Review Board (CTRB) in relation to the Procurement Law and Instructions to Tenderers (ITT). Find attached a reproduction of Mr. Mpiani�s letter to Waterville dated October 24, 2008. The letter was first published in the December 20, 2011 edition of The New Crusading GUIDE. View Attachment 1 >>
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