Legal opinion warned Gov’t about selling Water Street property to BK

(KN photo)

The former APNU+AFC administration was forewarned against selling prime waterfront facilities to Bk International at “disproportionally low rates,” according to a legal opinion obtained from Attorney-at-law Ronald Burch-Smith in January 2019.

Burch-Smith warned that sale of the property to BK “at overly generous prices,” can result in civil or criminal sanctions against public officers. In a letter addressed to former Permanent Secretary at the Ministry of Public Infrastructure, the Lawyer said “this is so particularly where the sale involves no obvious benefit to the public by facilitating important or valuable investment or as the result of public tender.” Further he added that in the case of utilizing a public tender, there is “no obligation to sell and [that] may not be appropriate legal justification for entering generous commercial terms.”

The Attorney warned that not only does the sale of the property offers no obvious public benefit, the State and the Transport and Harbours Department 0f the then Ministry of Public Infrastructure would be deprived of scarce Georgetown riverfront at below market rates.

At the time of the decision to sell, the property was being leased to BK through the National Industrial and Commercial Investments Limited (NICIL) and the company failed to pay its rent resulting in litigation. Burch-Smith pointed out that BK owed the Government almost $100M in accrued rent for the property.

After considering the facts of the proposed deal, the Attorney warned that in recent times, the sale of land by the Government of Guyana or its agencies such as NICIL has become the subject of criminal and public law litigation and the consideration of the completion of the sale to BK International requires careful review of the possible legal implications.

As such, he said the matter should not be regarded solely as a commercial matter but the possible criminal implications of generous commercial terms should be given appropriate consideration.

Despite the warnings in the legal opinion, the property at North Cummingsburg Georgetown, was sold to BK between Wednesday, February 26, 2020, and Friday, July 31, 2020. The $5B property was sold for just $20M.

On Tuesday, Former Minister of Finance Winston Jordan who signed the Transfer of Property Order, was placed on $3M bail over the sale of the property.

Jordan was dragged before the Chief Magistrate Ann McLennan where it was alleged that he wilfully misconducted himself by acting recklessly when he signed NICIL (Transfer of Property) Order No. 50 of 2020, which was published in the Official Gazette, transferring to and vesting to BK Marine Inc. absolutely, all buildings, erections, stellings, platforms, and further appurtenances, situated at North Cummingsburg, Georgetown.

The charge further read that the property being over 2.553 acres was valued over GY$5 billion but was sold at a price that was grossly undervalued to such a degree as to amount to an abuse of the public’s trust and without reasonable excuse or justification.

He was not required to plead to the indictable charge. He will make his next court appearance on February 10, 2022.

Jordan was represented by Senior Counsel Roysdale Forde and Attorneys-at-Law Joseph Harmon, Khemraj Ramjattan, and Darren Wade.