The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A cleaner has become the first Bahamian contractor to sue China Construction America (CCA) for breach of contract over the Baha Mar project, alleging it has been paid just 3 per cent of what is owed.

Franklyn Robinson, who trades as Ben Moore Toote Development Company, is claiming that he agreed a $178,862 contract with Baha Mar’s main contractor to provide cleaning services at the project site.

The deal was sealed on February 6, 2015, just prior to CCA’s dispute with Baha Mar’s owner, Sarkis Izmirlian, becoming public.

As a result, Mr Robinson and Ben Moore Toote Development Company, which he owns, are alleging that CCA (Bahamas) has paid them just $5,950 to-date, despite completing all their obligations under the contract.

“On February 6, 2016, the plaintiff and the defendant [CCA] agreed that the plaintiff would provide the defendant with various cleaning services at the Baha Mar project in Nassau, Bahamas, and that the defendant would pay to the plaintiff the sum of $178,862 for such services rendered,” Mr Robinson and Ben Moore Toote’s statement of claim alleged.

“In part performance of the said agreement, the defendant has, to-date, paid the plaintiff the sum of $5,950.”

The statement of claim continued: “The plaintiff has satisfied and discharged its obligations under the said agreement to the defendant [CCA].

“However, despite numerous demands for payment,the defendant has failed, neglected and/or refused to settle the balance due to the invoices issued by the plaintiff for the services rendered.”

Mr Robinson and Ben Moore Toote are thus claiming that CCA (Bahamas) has breached their contract by failing to pay 14 invoices submitted to it.

They are seeking the $172,912 balance alleged to be outstanding, plus interest and other relief as the Supreme Court sees fit.

CCA (Bahamas), though, in its April 12, 2016, defence disputed the $178,862 contract amount while admitting that it had paid Mr Robinson and Ben Moore Toote the $5,950.

And, while conceding that Mr Robinson and his firm had agreed to provide cleaning services to it, CCA (Bahamas) added: “The terms and amount payable under said agreement will be the subject of discovery and evidence led at trial.

“The plaintiff will be put to strict proof that it performed the services alleged in the invoices referred to, and that in the event the services were performed, they were performed with the skill and quality to be expected.”

CCA (Bahamas) and its attorneys, McKinney, Bancroft & Hughes, also demanded that Mr Robinson and Ben Moore Toote prove they met all the terms of their contract.

“The defendant contends that the plaintiff has failed to satisfy and/or discharge its obligations to it under the said agreement,” CCA (Bahamas) added. “Furthermore, the defendant puts the plaintiff to strict proof of the loss and damage alleged.”

The significance of the claim by Mr Robinson and Ben Moore Toote is that they are the first known Bahamian contractor to sue CCA (Bahamas) in the Supreme Court for monies allegedly owed to them on the Baha Mar project.

Few, if any, other Bahamian contractors have gone this route, likely for fear of upsetting CCA, the Government or both.

With the construction industry relatively moribund, and private sector projects few and far between, few will likely be willing to initiate litigation due to concerns they may be cut out of future developments by both the Chinese and the Government.

Many Bahamian companies will also be hoping that they are re-engaged as sub-contractors on the Baha Mar development, which would then give them the necessary leverage to demand payment from CCA (Bahamas) for monies outstanding.

US contractors, in contrast, have been more aggressive in seeking outstanding payments for work done on the $3.5 billion project at Cable Beach.

Controlled Demolition Inc (CDI) initiated action against CCA (Bahamas) last year in the southern New York district courts.

CDI is seeking to collect an outstanding $754,704 balance for work on Baha Mar, having been hired to demolish the former Nassau Beach Hotel and towers ‘F’ and ‘J’ at the Wyndham resort - thus making way for the $3.5 billion campus.

Mark Loizeaux, CDI’s president, claimed in a November 4, 2015, affidavit that CCA “continually stalled” in paying the contract balance and led his company on a ‘merry dance’ for two-and-a-half years in its quest for payment.

And earlier this month, Novum Structures, a specialist contractor that provides architectural and structural services, accused CCA (Bahamas) of citing “false reasons” to excuse non-payment of an outstanding $555,000 balance owed to it.

Novum claimed: “CCA Bahamas has breached the contract by .... failing and refusing to fully pay Novum for the work it performed on the project, directing Novum to perform change order work at an agreed-upon price and then refusing to pay for it; asserting false, pretextual reasons for not paying; approving Novum invoices and then failing to pay them in full; and breaching the contract’s implied covenant of good faith and fair dealing.”