Actions (reforms) in disputed government construction projects

The Office of the Attorney General (OAG) has asked Tashigang Dzongkhag Administration to complete the remaining works of the construction of Merak BHU and school dormitories at Bidung and Dungtse Schools. The works remained suspended after Mr. M/s Zangchong Construction & M/s Dechen Construction has failed to complete the projects and later forwarded the case to Anti-Corruption Commission (ACC) after discovering illegal and fraudulent practice by the contractors in collusion with Dzongkhag site engineers. The ACC then forwarded to OAG for its review and prosecution.

The OAG after thorough review of the case established that the termination of the works by the Dzongkhag Administration was done after the contractor failed to execute and complete the works. It is established that the construction works needed not be under perpetuate suspension due to the failure of the contractors and criminal prosecution of the defendants. Any further delay of the commencement of the stalled works at site will not only cause additional financial burden and irrecoverable lost to the government but also will deprive the schools and community to the already delayed completion of the projects. It is observed that from the  date of the commencement of the investigation by the ACC since 22nd October, 20018 and date of reference for prosecution to the OAG and its completion of review by OAG (14th October 2019), it took almost two years for which the works remained suspended.

The OAG in order to address such systemic flaws resulting from investigation, prosecution and criminal trial and to address such national and public interest issues arising out such of government construction related dispute; any cases referred to this office will take pre-emptory measures as follows:

  1. Upon the completion of any investigation and the reference of any government construction related cases, the OAG will hereafter consider and review the suspension order passed by the relevant agencies and initiate pre-emptory and mitigation measures before the initiation of any criminal charges before the court of law.
  2. It is decided that while every case needs to follow the due process of law and thorough analysis, the review of the cases referred for prosecution must consider the lifting of any injunction or suspension order so that irreparable harm or financial implications are minimized due to state prosecution.
  3. Any construction cases forwarded to OAG for prosecution, will at the earliest, explore if there is any suspension of contract work or properties attached and accordingly advise the concerned agencies to resume the incomplete contract work or lift attached properties if the deem justiciable.
  4. The OAG will also solicit relevant government agencies through collaborative efforts or by way of written request to carry out necessary intervention so that the prosecution of the case and judicial proceedings in no way should cause delays in the execution of government projects. This will be initiated after due consideration of any legal consequence or possible outcome of the judicial proceedings.
  5. The prosecution of the defendant(s) and the pendency of criminal proceeding when precluded with lawful suspension of the contractual works such as in Tashigang case should not hinder the administrative authorities to legally task for re-tendering or the lawful completion of the remaining works.
  6. The OAG notes that since the suspension of the work by the Dzongkhag authority was legally done, the re-tendering of the works or the execution of the work could have been carried out without delay. However, we observed that the Dzongkhag authority were ceased to execute the remaining works as the case was under the preview of ACC investigation and its reference for prosecution by this office.
  7. The OAG after reviewing the ACC investigation established that the contractor has no legal basis or justiciable recourse to carry out the unfinished work due to the nature of prosecutorial offenses as charged.
  8. The suspension of the works and its resulting inability to complete the projects has entailed huge financial implications to the Royal Government. This Office observes that any further delay of not completing the project will not only escalate the cost of raw materials overtime, but also without pre-emptory actions, the material at site and the woodworks and other works already executed at the project sites will become defunct and unusable and cause huge financial loss to the State.

Sd/-

(Lungten Dubgyur)

Attorney General

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