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Haiti - Politic : E-Power reacts and reminds the State of its contractual commitments
In a letter to E-Power SA https://www.haitilibre.com/en/news-29035-haiti-politic-the-government-takes-measures-to-improve-the-distribution-of-electricity.html "The Ministry of Public Works, Transport and Communications (TPTC) has ordered Ed'H General Directorate to inform you that arrangements are being made to standardize energy purchase agreements.
The recommendations of the Steering Committee are implemented taking into account the proposed changes mentioned in the document.
The Ministry of the TPTC sends you for signature the new contract that was proposed to you during the meetings with the Commission in October 2015. At the same time, the Ministry of the Economy and Finances awaits the return of the document signed by your institution in a that the new contract can, in a short time, come into force."
Reacting to this attempt by the State, Daniel-Gérard ROUZIER, President of the Board of Directors in a correspondence addressed to Ministers Fritz Caillot (Public Works) and Joseph Jouthe (Economy) recalls the terms of the contracts signed with the State and puts the latter in the face of its contractual obligations and responsibilities :
Letter of E-POWER S.A :
Subject : Proposal for a new contract
We acknowledge receipt of your letter dated October 14, 2019 regarding the proposed contract [...]
Firstly, it should be remembered that the existing contract between the Haitian State, EDH and E-Power SA was concluded after a long and transparent international bidding process from which E-Power was the winner, without any contestation of the other six competing firms that participated in this competition.
Secondly, you will note that the signature of the current contract was accompanied by the express approval of the Superior Court of Accounts and Administrative Dispute and that of the National Commission of Public Procurement, each in its respective.
Thirdly, before that the International Finance Corporation, a subsidiary of the World Bank, and the FMO, Dutch Development Bank, granted funding to the project, they demanded that the State, through the agency of the Ministry of Finance, Economy and Finance, certifies in writing the legality and the validity of the contract of January 17, 2008. The Haitian State's lawyers therefore guaranteed to the consortium of international lenders of the project that the contract had scrupulously respected all the prescribed the laws of the Republic of Haiti in this matter, including, but not limited to those related to the EDH, the Free Zones, the Code of Investments, the law on public markets etc...
Fourthly, we allow ourselves to recall that the public procurement legislation provides for the modification of signed contracts, but only with the agreement of both parties and not unilaterally. Indeed, both the 2009 law and the one that preceded it make any amendment to a contract concluded under the aegis of the Public Procurement Act to the agreement of both parties. Nevertheless, the Energy Sector Reform Steering Committee, both in the form and substance of its letters, wanted to unilaterally impose a new document on its contractual partner it has always been scrupulous in respecting all its commitments.
The law allows, of course, contractual modifications in the form of an endorsement, freely accepted by both parties. Nevertheless, the amendment, according to the contractual practice, occurs during the execution of the contract and concerns only part of it.
Moreover, the regime of endorsements is strictly defined in the law of 10 June 2009 on public markets, and the current contract has not come to an end, it can only be changed with the agreement of parts. It can not be completely replaced. However, the document submitted by the Steering Committee is, in both form and substance, a brand new contract. Moreover, in the case of a new contract, the respect of legality and transparency requires that we again submit to the competitive bidding process imposed by the public procurement legislation. The contract you are proposing is an OTC contract, which is prohibited by law.
Finally, in order to meet its contractual commitments to EDH and the State, E-Power had to obtain financing from local and international investors. These financings and especially these loans were obtained on the basis of the existing contract and the guarantee expressed by the State of its validity. Any redefinition of the terms that would substantially alter the stipulations in force, in particular those relating to the financial commitments of the parties, would require, according to the commitments made by E-Power, the prior written approval of the lenders.
In conclusion, Ministers, without going into the details of the new draft contract, the questions of principle mentioned above do not allow us to sign the document you have submitted to us. With the foregoing, we allow ourselves to remind you of the enforceability of the contract in force, in all its stipulations [...]"
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