BMTA to appeal against Central Administrative Court’s ruling

[snoop1130]

BMTA to appeal against Central Administrative Court’s ruling

 

 

Bangkok Mass Transit Authority (BMTA) will appeal against the ruling of the Central Administrative Court ordering the city bus operator to pay 1,159 million baht in compensation to Bestlin Groups and its affiliates for illegal cancellation of the NGV bus procurement contract.

 

The court also issued an injunction to put on hold the new bus procurement contract between BMTA and the new supplier, CHO-SCN, a consortium of Scan Inter Plc and Cho Thavee Plc.

 

BMTA management and its legal advisors held an emergency meeting today (April 11) to discuss the court’s ruling and their next move regarding the compensation payment and suspension of the new contract.

 

• BMTA buys 489 NGV buses from CHO-SCN

 

Transport Minister Arkhom Termpittayapaisith said today that he was confident that BMTA had strictly followed the rules and regulations.  He added that BMTA would proceed with taking delivery of the remaining 389 NGV buses from CHO-SCN Consortium after 100 units were already accepted and put into service in March.

 

Full Story: http://englishnews.thaipbs.or.th/bmta-appeal-central-administrative-courts-ruling/

 

-- © Copyright Thai PBS 2018-4-11

[webfact]

BMTA to appeal ruling on bus compensation

By THE NATION

 

File photo

 

Court orders state agency to pay Bt1.1bn to bestlin for violating deal
 

THE BANGKOK Mass Transit Authority (BMTA) plans to appeal a Central Administrative Court order for it to pay more than Bt1.1 billion in compensation to Bestlin Group for unlawfully terminating a procurement contract for 489 new NGV-fuelled buses, a senior official said yesterday.

 

Deputy Transport Minister Pailin Chuchottaworn said the Transport Ministry, which oversees the state-run operator of public buses in the city, will appeal the verdict within the legal deadline of 30 days.

 

 

He expressed confidence that the BMTA would win the case when it is brought to the Supreme Administrative Court.

 

The new buses purchased by the BMTA are fuelled by natural gas for vehicles (NGV). 

 

The court on Tuesday ordered the BMTA to pay Bt1.159 billion with an interest of 7.5 per cent per annum to Bestlin for failing to comply with terms of a contract signed by both parties in September 2016 for the purchase and maintenance of the buses.

 

In May last year, Bestlin brought the case to court after the BMTA scrapped the contract. The court found that Bestlin imported 489 NGV buses and delivered 390 of them to the BMTA.

 

The court also found that the city bus operator failed to inspect the delivered buses as well as the ones confiscated by the Customs Department on suspicion of customs fraud. 

 

The company said the buses were assembled in Malaysia to benefit from lower import tariffs among Asean member countries.

 

However, customs authorities suspected the buses were in fact assembled in China and shipped to Malaysia before being imported, in order to benefit from the preferable tariff. 

 

Due to the confiscation, the buses were not be delivered to the BMTA in time. The city bus operator later cited this in its decision to scrap the contract with Bestlin.

 

The court ruled that the BMTA’s claim was inconsistent with the fact that its committee overseeing the bus delivery had agreed to allow the company to gradually deliver the buses.

 

In a related case, the court on Tuesday also granted an injunction against new bids called by the BMTA after scrapping its contract with Bestlin. The plaintiff Siam Standard Energy Co, one of the bid contenders, said the BMTA’s resolution to approve a new procurement contract for 489 buses at a cost of Bt4.2 billion was unlawful. 

 

Observers were concerned the injunction order could complicate the delivery of buses by the new bid winner SCN-CHO, which is a joint venture between Scan Inter and Cho Thavee. Some 100 new NGV-fuelled buses bought under the new contract are already operating on Bangkok streets. Services of these buses may be suspended as a result, observers said.

 

Source: http://www.nationmultimedia.com/detail/national/30343014

 

-- © Copyright The Nation 2018-04-12

[ChrisY1]

This sad saga has developed into the current fiasco most likely due to "underpayments" to certain individuals.

"customs authorities suspected the buses were in fact assembled in China".....could well indicate that customs didn't actually prove the units were not Malaysian assembled...but certainly a good argument for impounding and charging.

The real truth won't be publicised of course, but there's an obvious bad for the BMA.....and they are bad!

[Cadbury]

46 minutes ago, ChrisY1 said:

This sad saga has developed into the current fiasco most likely due to "underpayments" to certain individuals.

"customs authorities suspected the buses were in fact assembled in China".....could well indicate that customs didn't actually prove the units were not Malaysian assembled...but certainly a good argument for impounding and charging.

The real truth won't be publicised of course, but there's an obvious bad for the BMA.....and they are bad!

The ruling of the Central Administrative Court was to quote:

"The court, however, ruled that there was no difference between the buses being fully assembled in China or in Malaysia as they serve the BMTA’s purpose to serve Bangkok bus commuters."

To further confuse the matter the court also said:

"....the buses which were supposed to be fully assembled in China was not an essence of this procurement contract although the contract stipulated that the buses must be fully assembled in China".

I think they may mean Malaysia rather than China so there may well be grounds for appeal.

I wouldn't be surprised if this decision by the CAC was "purchased" by interested party/parties who had a lot to lose.

When circumstances like this bring three parties of dubious integrity together (Customs, BMTA and Bestrin) there is sure to be trouble as they fight over the spoils.

[robblok]

10 minutes ago, Cadbury said:

The ruling of the Central Administrative Court was to quote:

"The court, however, ruled that there was no difference between the buses being fully assembled in China or in Malaysia as they serve the BMTA’s purpose to serve Bangkok bus commuters."

To further confuse the matter the court also said:

"....the buses which were supposed to be fully assembled in China was not an essence of this procurement contract although the contract stipulated that the buses must be fully assembled in China".

I think they may mean Malaysia rather than China so there may well be grounds for appeal.

I wouldn't be surprised if this decision by the CAC was "purchased" by interested party/parties who had a lot to lose.

When circumstances like this bring three parties of dubious integrity together (Customs, BMTA and Bestrin) there is sure to be trouble as they fight over the spoils.

For sure, that there is ground for appeal. One would expect buses to be delivered free of a customs claim. A customs claim that possibly could revert to the BMTA if Bestrin does not pay.

 

But Sickr in the other topic posted links that showed that only on the batch of the first 100 there were no taxes paid the others the taxes were paid. So Bestrin has a point too. 

 

Most court cases are not that easy to see who is right and wrong same applies here. 

 

I think the BMTA could have negotiated with Bestrin to pay the tax office and deduct it from the money they had to pay so the buses were free of tax instead of canceling the whole deal. Canceling everything might have been over the top. We will see who is right in the end. I expect this not to end at this court.. but whoever wins or loses will appeal again until the highest court.

[Langsuan Man]

This whole nightmare for the commuters of Bangkok is purely a result of the Thai insistence that everything here has to be done via a third party (read lot's of envelopes)

 

The question that should be asked is why this bus purchase wasn't done via a government to government sale ?

 

Do you think that Royal Thai Customs will be standing on the dock to collect the import duties when the Royal Thai Navy gets their submarines from China or did they ground the new jet trainers from Korea for non payment of duties

 

And I seriously doubt if the customs coffers were increased do to the import of  those 150,000 P320 Sig Sauer pistols that were purchased for the Royal Thai Police last December 

[Srikcir]

4 hours ago, robblok said:

the BMTA could have negotiated with Bestrin to pay the tax office and deduct it from the money they had to pay so the buses were free of tax instead of canceling the whole deal.

BMTA is running rogue so far as its cancellation of its procurement contract with Bestrin (aka Bestlin).

Customs tax is the responsibility of the Thai importer (ie., Super Zara), not the supplier nor the exporter. It follows therefore, that nonpayment of customs tax on the buses is a matter between Customs (a separate Thai governmental agency) and the importer, not between BMTA and Brestrin.

 

If Bestrin made false or misleading representations to the importer (who should have confirmed such representations considering the amount of value involved) as to the origin of the buses for the purposes of customs tax for which ASEAN imports are exempt, the issue for the importer to recoup any customs tax liability is between the importer and the supplier.

In sum then, there is no legal option for BMTA to negotiate with Bestrin over payment of the tax (but this is Thailand, who's to say what can't be done outside the law?).

 

However, BMTA might have legal recourse against Customs as Customs apparently released the first 100 Bestrin buses to BMTA with no customs import tax without carefully examining and confirming (a simple phone call to Malaysia?) import documentation. But having released the first 100 buses to BMTA who subsequently registered them and placed them into service, Customs could not then seize the buses.

Another however, the current BMTA Director was appointed by Prayut under Article 44 to force out the original director over the BMTA controversy involving a lawsuit brought by Bestrin  against BMTA alleging collusion between BMTA and a CHO-related company. So I doubt the current Director will create further conflict by suing Prayut's government! Or he might be replaced.

[robblok]

1 minute ago, Srikcir said:

BMTA is running rogue so far as its cancellation of its procurement contract with Bestrin (aka Bestlin).

Customs tax is the responsibility of the Thai importer (ie., Super Zara), not the supplier nor the exporter. It follows therefore, that nonpayment of customs tax on the buses is a matter between Customs (a separate Thai governmental agency) and the importer, not between BMTA and Brestrin.

 

If Bestrin made false or misleading representations to the importer (who should have confirmed such representations considering the amount of value involved) as to the origin of the buses for the purposes of customs tax for which ASEAN imports are exempt, the issue for the importer to recoup any customs tax liability is between the importer and the supplier.

In sum then, there is no legal option for BMTA to negotiate with Bestrin over payment of the tax (but this is Thailand, who's to say what can't be done outside the law?).

 

However, BMTA might have legal recourse against Customs as Customs apparently released the first 100 Bestrin buses to BMTA with no customs import tax without carefully examining and confirming (a simple phone call to Malaysia?) import documentation. But having released the first 100 buses to BMTA who subsequently registered them and placed them into service, Customs could not then seize the buses.

Another however, the current BMTA Director was appointed by Prayut under Article 44 to force out the original director over the BMTA controversy involving a lawsuit brought by Bestrin  against BMTA alleging collusion between BMTA and a CHO-related company. So I doubt the current Director will create further conflict by suing Prayut's government! Or he might be replaced.

Are you absolutely sure that the tax issue would not drag over to the BMTA.. that would be my worry if the importer did a runner and tax needed to be collected....

 

I am not sure that it would have no repercussions otherwise you could set up a shell company that is liable for taxes sell it to an other company let the shell company explode and have buses or whatever without taxes. Just saying that its not always that clear. I would be worried if I were a representative of the BMTA that the taxes could mean trouble. 

 

But total cancellation would be a bit much. (or maybe not.. lets watch the other courts I have a feeling this will go up to the highest courts). 

 

Do you know what is happening with the buses ? are they standing still somewhere gathering dust ? I hope it won't be an other fire truck fiasco. 

[Srikcir]

9 hours ago, webfact said:

the court on Tuesday also granted an injunction against new bids called by the BMTA after scrapping its contract with Bestlin.

I was wondering if Bestrin would bring the same kind of lawsuit that it had originally brought against BMTA for BMTA's alleged collusion with a CHO-related bidder that robbed Bestrin of its bid award for the first group of 489 buses. Perhaps with a supporting lawsuit by another bidder encouraged Bestrin to proceed again. BMTA may have to rebid the second group of 489 buses as it did with the first group.

[robblok]

9 minutes ago, Srikcir said:

I was wondering if Bestrin would bring the same kind of lawsuit that it had originally brought against BMTA for BMTA's alleged collusion with a CHO-related bidder that robbed Bestrin of its bid award for the first group of 489 buses. Perhaps with a supporting lawsuit by another bidder encouraged Bestrin to proceed again. BMTA may have to rebid the second group of 489 buses as it did with the first group.

You obviously are better informed then I am.. sounds like a great mess.

 

What i find strange is that (i assume could be wrong) Bestrin has paid for the pleasure to be the supplier why suddenly turn on them. Maybe I am wrong that Bestrin paid for the pleasure to deliver and that is what set off the BMTA's officials..