Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

The Wa­ter and Sew­er­age Au­thor­i­ty (WASA) has won an ap­peal over its right to ac­cess a $2.5 mil­lion per­for­mance bond re­lat­ed to a ter­mi­nat­ed con­tract for a ma­jor sew­er project in San Fer­nan­do. 

In a judg­ment this week, Ap­pel­late Judges Mi­ra Dean-Ar­mor­er, Maria Wil­son and Car­ol Gob­in dis­missed Bankers In­sur­ance Com­pa­ny Ltd's ap­peal over a judge's de­ci­sion to up­hold WASA's claim to the bond. 

The rul­ing pro­vid­ed ap­pel­late en­dorse­ment of the en­force­abil­i­ty of per­for­mance bonds in pub­lic in­fra­struc­ture con­tracts. 

The le­gal dis­pute stemmed from a $25 mil­lion con­tract with Oil­field and Ma­rine Sales and Ser­vices Ltd (OMSS) and Project En­gi­neer­ing Con­sul­tants Ltd (PEC), based in the Unit­ed States, for re­place­ment and re­ha­bil­i­ta­tion works on the San Fer­nan­do East Trunk Sew­er in 2013. 

As part of the con­tract, the com­pa­nies were re­quired to pro­vide a per­for­mance bond worth ten per cent of the val­ue of the con­tract to guar­an­tee due ob­ser­vance and per­for­mance of it. 

The bond was pro­vid­ed by Bankers In­sur­ance on the com­pa­nies' be­half. 

WASA moved to ter­mi­nate the con­tract and claim the bond af­ter the com­pa­nies al­leged­ly failed to com­plete the works in the 180 days that were agreed by the par­ties. 

WASA's claim was up­held by for­mer High Court Judge and cur­rent Ap­pel­late Judge Joan Charles in No­vem­ber 2023, lead­ing to the ap­peal. 

In the ap­peal, Bankers In­sur­ance claimed that the tri­al judge was wrong to con­clude that the com­pa­nies breached the con­tract. 

It claimed that there was no ev­i­dence of the ac­tu­al start date of the project, which could be used to de­ter­mine whether it was not com­plet­ed with­in the re­quired time. 

In dis­miss­ing the ap­peal, the pan­el agreed with WASA's lawyers led by Anand Ram­lo­gan that even with­out the ev­i­dence, the doc­u­ments be­tween the par­ties pro­vid­ed a for­mu­la for de­ter­min­ing the com­mence­ment and com­ple­tion dates. 

The judges found that the Bankers In­sur­ance was aware of the con­trac­tors' oblig­a­tions when it agreed to guar­an­tee the project. 

They al­so ruled that there was enough ev­i­dence be­fore the tri­al judge for her to up­hold WASA's claim. 

As part of their de­ci­sion, the judges or­dered in­ter­est on the bond and di­rect­ed the com­pa­ny to pay WASA's le­gal costs for the ap­peal. 

WASA was al­so rep­re­sent­ed by Jared Ja­groo and Seth Rams­den. Bankers In­sur­ance was rep­re­sent­ed by Ernest Koy­lass, Asaf Ho­sein, Deb­bie Roopc­hand and Emile Pol­lard.