The Office of the Attorney (OAG) on Monday will be filing its appeal to the High Court against the Haa Dzongkhag court verdict against the former Foreign Minister and now Member of Parliament (MP) Rinzin Dorji.
However, the OAG will only be appealing the DCM misuse aspect of the verdict and not the one concerning the timber sawing tender award.
An OAG lawyer said that the decision to not appeal the issue of timber sawing tender award was entirely due to the second evaluation document signed by By all accounts MP Rinzin Dorji would have been convicted by the Haa Dzongkhag court if not for the emergence of second evaluation document.
The document surfaced in court on 21st April 2015 when the project manager Wangchuk Tshering started defending himself in the court and submitted it as part of his defence.
The OAG lawyer at the time immediately questioned the validity of the document in court.
However, outside the court the OAG immediately contacted the ACC asking if they ever came across such a document while investigating the case.
A senior ACC official after enquiring with an investigation official told the OAG that the ACC was ‘neither preview to nor in possession of such a document.’
A senior OAG official said that only after more than three weeks of the Haa Dzongkhag court verdict in late June a senior ACC figure around mid July 2015 told the OAG that the ACC had missed the crucial document while handing over the evidences of the investigation file.
It has been learnt the Attorney General recently wrote to the ACC asking for ACC to officially submit an attested copy of the document. The ACC on its part sent the attested document to the OAG from their investigation case file.
An OAG lawyer said that the OAG before deciding on the appeal asked for the ACC to come up with any procurement law or provisions that could delegitimize the second evaluation document.
According to the lawyer the ACC failed to come up with any particular legal section to show the signed document violates procurement norms.
The nature of the document and the testimonies supporting it also make appeal difficult according to the lawyer.
In the Haa Court the OAG initially submitted documentary evidence showing that as per a Dzongkhag Level Tender Committee (DLTC) meeting, the bid of L.D Sawmill at Nu 37.70 per cubic feet, though being the lowest among the seven bidders, was considered too high and so the decision was to retender it.
Both the ACC and the OAG’s charge was that MP Rinzin Dorji, as the then Haa Dzongda without informing the tender committee, unilaterally gave the bid to L.D Sawmill who offered a discount of Nu 27 per cubic feet. This was later hiked to the original Nu 37.70 on the request of the contractor.
The Foreign Minister claimed that there had been a meeting of the DLTC to do away with the retender decision and instead award the work to the contractor. The Foreign Minister who did not hire a lawyer and kept up mainly a verbal defence both in the media and the court did not have any document, at the time, to show such a meeting had taken place.
However, on 21st April 2015 when the Project Manager, Wangchuk Tshering, while defending his own case submitted signed minutes of meeting of a DLTC meeting dated 15th February 2012.
The minutes show that the members present in the meeting were the Dzongda, Project Manager, Project Forest Officer and Project Engineer who had all signed the minutes. Later four more members, the Lapon, Lam Neten’s representative, Dzongkhag Engineer and the Essu Gup signed the minutes, bringing the total signatures to eight of the 11 committee members.
The second evaluation document among other things said, the rate quoted was very high and it was to be re-tendered but with at the request of contractor the rate was re-negotiated.
Of the eight members seven of them said before the court that it was also on the basis of this signed document that the contractor was eventually given the work at the original quoted rate of Nu 37.70 as the contractor was making losses and had threatened to stop work and take away his machines from the site.
Committee members had pointed out that the signed minutes had also noted that the Nu 37.70 bid of L.D sawmill was the lowest evaluated bid.
Only one member who was a representative of the Lam Neten said that he did not what he was signing as he was a stand in for the original member.
An OAG lawyer said, “Some media reports have mistakenly said that all eight said they did not know what they were signing. In fact seven of them said they knew what they were signing and it was only the Lam Neten’s representative who as a new member said he did not remember what he was signing at the time.”
The OAG, in their attempt to check the validity of the document, also checked the dispatch file of the Lhakhang Karpo project but found that such a document had been registered and dispatched on that date. Not only that there was also a forwarding letter sent with the second evaluation document.
The Attorney General Shera Lhendup said, “The job of the OAG is not to seek conviction at any rate but to make the best of presentation of evidences to secure due justice.”
This paper made several attempts to get ACC to comment on the above but received no response with people either not willing to comment or saying that the new ACC Chairperson and Commissioners are yet to officially takeover the office.
DCM appeal The appeal for the DCM case by the OAG will be made by arguing that the use of the DCM was not a ‘pressing emergency personal need’ and asking for much heavier fines and penalties to be imposed.
The Haa Dzongkhag court had acquitted MP Rinzin Dorji citing the Finance Ministry’s 13th December 2000 circular that allows civil servants to use vehicles for ‘pressing and emergency personnel need.’
An OAG lawyer said that the transport of timber for a planned house construction could not construe as being ‘pressing and emergency personnel need.’
The lawyer said that MP Rinzin Dorji also failed to secure the prior approval of the head of the agency as required under the same circular.
The original Haa Dzongkhag verdict had asked MP Rinzin Dorji to only pay refund Nu 4,166 for not being able to produce the fuel receipt for that amount.
The OAG will be asking for heavier penalties as their argument would be that the former Haa Dzongda violated this circular.
As per the circular’s penalty provisions the OAG in addition to conviction will be asking for three times the mileage of Nu 14 per km be charged and a fine of Nu 1,000 each time the vehicle travelled.