“ Koe tohi 'ena 'a e fale'i fakalao 'a e Potungaue 'a e Ngaahi Ngaue Lalahi Posesi Bloomfield 'o fale'i fekau'aki mo e teuaki fakatau ko'ena.
I n t e r n a l M e m o
TO: To: Acting CEO
Cc : Director Corporate
: Director Land Transport
: Director PPD
21st August, 2015
FROM: MOI Legal Specialist/Posesi Bloomfield - Advice No. 216/2015
SUBJECT: MOI Legal Advice re Procurement of Vava’u Construction Equipment
Dear Fotu,
Subject matter was referred to me this morning for advice by Mandie (through Liu). My advice is as follows;
1. Contract for purchase has been signed by all parties (with Pesa on behalf of the Ministry). My understanding of Procurement procedures is that we first get approval from procurement before signing the purchase agreement. This will be a problem for the Ministry of Finance.
2. Vava’u Construction Equipment (VCE) may seek to enforce the agreement, but I am comfortable that no Government Procurement Contract is enforceable until it is approved by the Ministry of Finance. This is sole source procurement and I do not see any supporting documents for the use of this method.
3. The Ministry will need full written authorization from the Acting CEO, the Hon. Minister, and a Cabinet paper if Procurement Regulations are to be ignored.
4. This was the first time I have seen the contract. The contract is extremely inadequate as an official Government Document to fully protect the Government. What redress does the Government have if the equipment is substandard? What redress does the Government have if the equipment is currently used as security by a Bank/Lender?
5. I had advised previously that all Ministry contracts should be drafted to a minimum standard, and provided templates for a number of legal agreements, including purchase. This contract is a 1 page document for the purchase of $500,000 worth of equipment, via sole source, and signed already. There should have been many other normal contractual terms in this agreement, which have been left out. We can draft a new revised agreement for your consideration.
6. The valuation for this equipment should be confirmed with Maile, and possibly get an independent valuation.
7. Suggest a credit check (with Banks and Lenders) be run to ensure the equipment is free and clear of all legal obligation.
Best,
Posesi. ”