The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

BAHAMIAN contractors say they are “within 30 days” of launching Judicial Review proceedings over the Government’s failure to implement the Act and licensing regime designed to regulate the industry.

Leonard Sands, the Bahamian Contractors Association’s (BCA) president, told Tribune Business that the eight-year wait to give full effect to the Construction Contractors Act 2016 has been “going on too long” and industry operators are seeing “multi-million dollars going by the wayside” due to lost opportunities to work on major development projects and joint venture with foreign firms.

Asserting that these losses relate directly to the absence of the licensing regime, which would affirm the quality and competencies of Bahamian contractors, that the Act was supposed to put in place, he urged the Davis administration to act “immediately” and remove all remaining obstacles to full implementation.

Clay Sweeting, minister of works and Family Island affairs, in messaged replies to this newspaper’s questions said recommendations to enhance and improve the Act were being forwarded to the Attorney General’s Office so that the necessary legal amendments can be made.

“The legislative committee at the Ministry of Works and Family Island Affairs recently completed a review of the legislation, and the recommendations provided by the other contractors associations in The Bahamas, with a view to amending provisions in the Act to ensure efficiency and accuracy,” the minister confirmed.

“In particular, under Section 10(2) (d) (iii), the grandfather’s clause had expired, and it is important that this along with other sections of the legislation be amended. We are currently compiling all of the recommendations from the various contractors’ associations, along with the recommendations from the legislative committee, to forward on to the Attorney General’s Office.”

Mr Sweeting acknowledged the multiple benefits that full implementation of the Construction Contractors Act will bring, including better consumer protection and redress against shoddy workmanship and fraudulent practices, as well as fostering greater trust in Bahamian contractors and their capabilities by local and international developers.

However, he did not respond to Tribune Business questions on the likely timeline for completing adjustments to the existing Act and bringing them into effect, or how great a priority this is for the Davis administration. Prime Minister Philip Davis KC, in his role as minister of works during the last Christie administration, led the Act’s passage through Parliament in 2016.

However, the law and the regulatory regime it was supposed to usher in have never been given full effect. Desmond Bannister, as minister of works in the Minnis administration, told this newspaper at the time that he wanted to make sure the Construction Contractors Act would work as intended, and was capable of being enforced, with all concerns addressed before it was implemented.

As a result, while the Act was passed by Parliament, it is unclear whether it was ever ‘gazzetted’ and laid in the House. While a registrar of contractors was appointed, the Board that is to oversee the registration/licensing process, and the self-regulation of contractors, has never been appointed. Members were to be nominated by both the Government and the private sector.

Mr Sands told Tribune Business that Mr Sweeting’s comments showed little had been done to advance the Act for six months. “That was the situation about six months ago. That’s where it’s pretty much at,” he added. “I think the Government of The Bahamas needs to not quickly, but immediately, address it. Immediately. Not in the near future, but immediately.”

Justifying his call, the BCA president said there was an obligation on the Government to follow its own laws. And, “going further”, he said it could be argued that every construction contract the Government has entered into since the Act took effect on May 8, 2017, could be deemed “voidable” and subject to Judicial Review because none of the contractors involved are licensed according to the law.

Suggesting the situation is no different from the licences required to practice by attorneys and doctors, Mr Sands said many Bahamian contractors who already want - and qualify - to be licensed are being denied this opportunity because the necessary mechanisms for this to happen have not been activated.

“There’s no place for you to apply for a licence,” he explained. “I got a call on Thursday from a lady from Florida. She has her own company here in The Bahamas. They’re moving down to The Bahamas, bringing their assets, and are about to start a project in six months. She’d like to know the steps to get licensed.

“I said that unfortunately, while the law exists, no appropriate regime for you to apply for the licence exists. She said: ‘The law was passed in 2017. What do you mean I can’t get a licence?’. I’ve spoken to the minister, Mr Sweeting, and I told him that they don’t appreciate the gravity of the situation. That there is a law that is not being followed by the law makers.”

Mr Sands added: “The BCA is now minded to seek legal redress against the Ministry of Public Works. I want to be licensed but I can’t. Since 2016 I have had members who want to be licensed but cannot. Is that a benefit we are being denied? Is there not an obligation on the ministry and minister to ensure that a right that exists we can exercise?

“We present a legal argument on Judicial Review as the first part, and that our rights are being infringed as contractors because we cannot be licensed. There’s a financial quantity that we intend to pursue because there are persons standing in losses of hundreds of millions of dollars because they don’t have a licence that persons coming into the country require for them to engage in joint venture partnerships.

“There’s a loss of revenue we can file for. This is a major thing. I’ve tried to reach out to the Prime Minister. We have lots of contractors here having to live on half income because they don’t have a licence. The law is in place. They should be able to get a licence.”

Mr Sands said he disagreed with arguments that the Construction Contractors Act does not apply because it has not been fully implemented. Asked when Judicial Review proceedings would be launched, he replied: “We are in the next 30 days of making such an application. That’s how close we are.

“We have sought counsel, we have sought a second opinion. We are readying to file. It affects hundreds of members, multi-million dollars are going by the wayside, members are suffering substantial loss of income. We cannot let this continue any more. We are a country of laws. We hate to go here, but have to at this point in time. It’s been going on too long and we want our licences.”

Mr Sweeting, acknowledging the Construction Contractors Act 2016’s benefits, said: “By regulating contractors, the Act provides mechanisms for consumer protection. Homeowners and property owners are safeguarded against fraudulent practices and substandard work.

“Part VI of the act offers recourse for property owners to make complaints to the Board in [such] cases like to have their matters resolved through a disciplinary process. For consumers and investors, a regulated construction industry offers greater confidence. Knowing that contractors are licensed and regulated provides assurance of quality and reliability, which can stimulate investment and development in the region.”

Mr Sweeting added that “clear and fair regulations can make The Bahamas more attractive to international contractors with specialised skills, contributing to the local economy and transferring knowledge to the Bahamian workforce”, while the Act “provides requirements for insurance, which helps to protect clients from financial losses due to contractor default, bankruptcy or incomplete projects”.

“The Act levels the playing field by ensuring that all contractors operate under the same regulations and standards. This prevents unqualified or underinsured contractors from undercutting professionals who invest in proper licensing, insurance and training,” the minister said.

“After reviewing the legislation, we found clauses to be amended. We also discovered there were other associations to be considered. We gathered recommendations and then took them to the legislative committee.”