Friday, December 19, 2008
ISLAMABAD: A Rs 60 billion project under Prime Ministers Housing Programme is being awarded to a UK based company, known for shoe making, and the extremely hush-hush tactics being used without securing the interest of end consumers, may turn it into one of the biggest government-sponsored housing scams.
What is really strange is the fact that the agreement was signed between the Imperial Houses (Pvt) Limited (IHL) and the Pakistan Housing Authority (PHA) without inviting open bids. The bureaucrats admit that the agreement signed was faulty and concluded in an indecent haste without consultations with all the official stakeholders due to political pressures.
When contacted, both Secretary Housing Samiul Haq Khilji and MD PHA Raja Muhammad Abbas said there were serious shortcomings in the JV agreement, which need to be resolved before the government moves forward. Khilji said the disbursement of funds should be made in accordance with the government rules and regulations.
Asked about the political pressure for awarding the project to the IHL, he said: As regards pressure, the haste in which it was all done speaks volume for itself.Abbas also said the PHA, too, was under tremendous pressure to sign the agreement with the understanding that the Law Ministry had taken care of everything.
While Abbas said if foolproof system was not developed, it might lead to yet another major financial scam in the country, Khilji remarked: It has potential to become a financial scam and create great embarrassment for the government.
But circles close to the housing minister say these two objecting bureaucrats may soon be fired from their jobs as they were creating hurdles in a planned scheme of things.Housing Minister Rahmatullah Kakar also confirmed that the above two officers were creating hurdles in the implementation of the project and causing unnecessary delays.
The minister said such officers were attempting to sabotage the project as well as the government. The minister said after the Law Ministrys vetting, there was no need for a fresh examination of the agreement by different experts.
Kakar said he had nothing to do with the IHL and insisted that his foremost concern was the interest of the people and safeguarding the public money. The minister said his secretary and the MD PHA were creating problems from the day one and he was even told by a government official that the secretary Housing and MD PHA had asked him to find hitches in the agreement. The minister also hinted at some controversial allotments of government plots in Islamabad by the duo.
IHL owner Shaukat Saleem, when contacted, also endorsed the ministers viewpoint thatbureaucratic hurdles were causing unnecessary delays. He refuted the impression that he was a mere shoe maker and insisted that besides being in tiles and textile business, he was also a property developer and had constructed about 200 flats in the UK. Dispelling the impression that he was exerting pressure on the government and the Housing Ministry for early execution of the JV agreement on his terms, he assured that he would not touch the project if he felt that he could not complete it.
The project started off on a fast forward note but later the bureaucracy in the Housing Ministry, instead of implementing the agreement, referred it to the relevant government agencies, including the Infrastructure Project Development Facility (IPDF), which clearly found the agreement faulty and harmful for the government as well as the end consumers.
In view of some serious objections, a draft addendum agreement was prepared but that too was referred to the Ministry of Law without seeking the comments of the concerned agencies, particularly that of the IPDF. The bureaucracy is still reluctant to sign it unless the ECC, the Planning Commission and other concerned stakeholders approve the same. Indications are that the Secretary Housing Samiul Haq Khilji and MD PHA Raja Muhammad Abbas may be removed from their present positions sooner than later as the Minister for Housing Rahmatullah Kakar sees the two creating usual bureaucratic hurdles. Rahmatullah said the agreement once signed would be placed before the cabinet for umbrella approval.
Documentary evidence available with The News reveals that following the government decision to launch PMs Housing Programme to provide low cost housing in Pakistan, the PHA issued advertisements and issued letter of intents to the interested parties for projects based on private public partnership (PPP) as per the IPDF guidelines.
Over 20 companies showed interest and MoUs were signed with 12-13 companies. The IHL was included amongst these interested parties. An MoU between the IHL and the PHA was signed on 18th September, 2008. Subsequent to the signing of the MoU, the IHL submitted its proposal for low cost housing development in Pakistan on Oct 17, 2008. After this, the Housing Ministry requested the Ministry of Finance for issuance of Sovereign Guarantee to the IHL. While the MoF response was awaited, the draft agreement was also forwarded to the Ministry of Law for scrutiny, which after vetting the draft agreement sent it back to the Housing Ministry.
A day later on Oct 31, the Minister for Housing wrote on the file that the agreement be signed with the IHL as vetted by the Ministry of Law despite the fact the MD PHA clearly reflected on the file that not only the Finance Ministrys response was still awaited but also technical and financial analysis of the JV proposal was under way and the case had already been sent to consultants for necessary action. It was also noted that the land ownership documents (of the IHL) had been forwarded to revenue authorities concerned for verification.
The case file was put up for consideration and decision of the minister, who noted, Approved. Agreement to be signed as vetted by Law Division and report compliance. The same day the agreement was signed between the two with an official source insisting that the signing ceremony was held at the residence of the minister but both Rahmatullah Kakar and the IHL owner Shaukat Saleem, a British Pakistani, denied this.
The agreement not only includes the provision of GoPs sovereign guarantee to the IHL but also includes clause whereby the PHA would pay 15% of the total project cost i.e. Rs 60 billion to IHL in advance. The agreement also envisaged that the land would be provided by the IHL for construction while the PHA would be responsible for marketing and sale of housing units to the government employees and general public.
Three days after the signing of the agreement, the Finance Ministry wrote to the Housing Ministry on the subject and said that the proposed JV arrangement to be concluded between the PHA and the IHL does not involve issuance of guarantee for foreign currency loan.
Without knowing that the agreement has already been signed, the finance ministry added, The Finance Division does not issue sovereign guarantee to ensure the successful completion of the project under the joint venture. We understand that these provisions should be covered in the appropriate section of the concern joint venture agreement. Subsequently, the joint venture agreement if required may be got cleared from the competent authority. Later, the Finance Ministry set up a five-member committee to look into the issue of sovereign guarantee for implementation of the IHL project. However, the said committee has yet to hold its first meeting.
Meanwhile, on Nov 1, a day after the signing of the agreement, the PHA referred the IHLs proposals to the IPDF, informing the latter that the agreement had already been signed based on PPP model with the IHL. It added that the PHAs technical wing is in the process of finalisation of technical and financial details through concerned consultants. Through the same letter, the PHA sought from the IPDF its expert opinion on the agreement, clearly mentioning, The enclosed JV could not be discussed with IPDF team due to acute shortage of time at the time of its signing, which is regarding a housing project under PMs Housing Programme.
On Nov 13th, the IPDF wrote back to the PHA and pointed out a number of serious drawbacks in the agreement and rather termed it a nullity, void and unenforceable for want of equity of PHA. The IPDF said that as per international best practice, an advertisement soliciting EOI from investors is published in order to evaluate the level of interest of private sector in the project and not to pre-qualify them.
The pre-qualified parties are invited to submit competitive proposals covering technical, financial and legal aspects. After comparing the competing bids with each other and with the feasibility conducted by the institution itself, to select the private party who has submitted best proposal. We are not aware whether our Procurement Guidelines have been followed, the IPDF wrote and the Housing Ministry, including the minister confirmed, that no such bidding was done to offer the project to the IHL.
In its opinion about the JV agreement, the IPDF said it had observed certain major defects in the form and content of the agreement, which includes that despite being a JV agreement as an equity joint venture, the equity of the IHL and PHA are 0 per cent and 100 per cent, respectively, which makes the agreement a nullity, void and unenforceable for want of equity of PHA.
It added that there was a wide gulf of unequal distribution of responsibilities between the IHL, JV company and the PHA. For instance, the cost incurring responsibilities including inter alia, booking of flats, sale of flats, obtaining key permissions, utilities, tax exemptions, payment to JV Escrow Account etc have also not been duly imposed under a structured mechanism.
While the sources insist that the Law Ministry was also under pressure to vet the agreement without giving it a serious thought, the IPDF confirmed, The JV Agreement has not been exhaustively drafted. Some basic and fundamental clauses are completely missing in the JV Agreement or defectively embedded, causing the JV Agreement to be substantially lacking in prescribing manifest and unequivocal extent of existence and operation of the rights and liabilities accruing upon the parties.
It added that some missing clauses include Entirety Clause, Termination Clause, Force Majeure Clause, Disclosure Clause, Warranties Clause, and Exclusion Clause for Implied terms; Escrow Agreement Clause; Monitoring Clause and Delay in Performance.
It also pointed out that the total cost of the IHL land was around Rs 15 crores against which it secures 100% participating interest in the JV Company whereas 15% of the selling prices of 2,840 housing units (the first phase of the project) comes to at least Rs 85 crores against which the PHA enjoys 0% of participating interest. It is quite surprising as to how this arrangement is acceptable to the PHA.
It added that the entire revenue stream in the agreement was based upon the upfront investment of the PHA and successive guaranteed commitments by PHA at regular intervals for the subsequent phases of the project. Committing such huge amounts of money at regular intervals by PHA to a private party without following standard contractual terms and without a proper project structure, may give rise to litigation against the PHA and the GoP if the subsequent huge sums of monies are not made at the scheduled dates.
The minimum selling price of one unit of this so-called low-cost housing project would be Rs 2 million. The IPDH warned the PHA that the authority would be exposed for increase in costs due to any unforeseen events as the PHA would be under obligation to buy all the housing units at increased costs because of which it would be at a complete disadvantage.
Additionally, according to the JV agreement, the board of director (BoD) of the JV Company would have thee members of the IHL (father and his two sons) and two members of the PHA with the CEO from the IHL, which means that effectively IHL would be controlling the JV Company. The JV Company BoD would even be empowered to amend the JV Agreement, which unjustly empowers IHL to solely operate the JV Company accounts.
Further that the IHL shall sell the completed housing units to PHA no matter if these units are bought by the public or not. The IPDH pointed out many other objections and said that minimum risks were transferred to the IHL while most of the risks were retained by the PHA.
Financing risks, design risk, operation risk, inflation and marker risk all belong to the PHA alone.
The IPDH, however, pointed out that the only positive thing that does not give any legal authority to this agreement is one of its clauses that says that the agreement would be effective from the date when the amount equalling 15% of selling price of housing units is extended by the PHA to the JV Company.
After the highly alarming report of the IPDH, the housing secretary and MD PHA re-negotiated a draft addendum agreement but they remained under pressure to send it to the law ministry for vetting and re-signing. But the bureaucracy noted on the file, Due to shortage of time, the Addendum as well Memorandum of Articles has not been gone through thoroughly keeping in view a new concept of JVs and involvement of Company of SECP laws etc., and even this could not be sent back for want of their further input.
The MD PHA wrote that the members of the authority are of the opinion that inputs from finance, the IPDF and technical consultant can be of vital importance for the execution of the Agreement.
The secretary housing in his detailed comment besides seeking strict adherence to the IPDHs guidelines said that there must be foolproof arrangement to safeguard the interest of end consumers/allottees. Besides the IPDH, he said, the Finance Ministry and the Planning Commission, who are the stakeholders in the PMs Housing Programme, must be consulted before moving forward in this project.
The project cost is more than Rs 60 billion, therefore, its final approval needs to be taken by
the ECC through the Planning Commission and Finance Division.