Recent Construction Contractor Legislation Ensures Integrity of the Sector Says State Minister Elsworth Johnson

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The Hon. Elsworth Johnson, Minister of State in the Attorney General’s Office and the Ministry of Legal Affairs, December 6, 2017 at BCA luncheon meeting, Poop Deck West, Sandyport. (BIS Photo/Gena Gibbs)

The Hon. Elsworth Johnson, Minister of State in the Office of the Attorney General and Ministry of Legal Affairs, addressed the Bahamas Contractors Association (BCA) on legislation passed to ensure the integrity of the sector at their monthly luncheon meeting, December 6, 2017, at Poop Deck West, Sandyport.

State Minister Johnson thanked the BCA for its effort, continued representations, and lobbying support to the Government, which “allowed the ‘Construction Contractors Act 2016’ (‘the Act’), to be enacted and made a reality,” he said, adding: “The Government recognizes that further action is needed to fully implement the Act.  This is being addressed.  Further, be assured that this Government is committed to the implementation and strict enforcement of this groundbreaking legislation,” said State Minister Johnson.

Subsequently, Johnson explained the integral powers of the Act, which benefits those employed in the third major economic sector of the Bahamian economy. “The Act, which came into force on the 8th of May, 2017, provides inter alia, for the

(1) Registration and licensing of Construction Contractors throughout The Bahamas; regulation and control of the construction contracting industry;

(2) Establishment of the Construction Contractors Board (‘the Board’) which is empowered to discharge the responsibilities assigned to the Board under the Act;

(3) Appointment of a Registrar who is required to provide the Board with such staff and accommodation, services and other facilities as are necessary for the performance of the Board’s functions;

(4) Establishment of a Contractors Register to ensure that all individuals who apply to be registered as a Contractor, are duly qualified and certified to be enrolled on such Register;

(5) And establishment of additional requirements to be satisfied by non-Bahamian citizens who apply to be registered as a contractor,” said State Minister Johnson.

 “This legislation is the result of a partnership between the Government and the Association.  One of the main concerns, for both of us was ensuring the integrity of your sector, while at the same time, providing protection for Bahamian consumers against unlicensed persons, poor workmanship and what some have termed as ‘unscrupulous’ contractors.” Johnson added that the Act provides an individual’s entitlement to be registered in the relevant section of the Contractors Register, “if upon his written application to the Constructions Contractors Board (“the Board), he satisfies the Board that, he has obtained certain professional certification, diplomas or degree as set out in the First Schedule.” The Act also provides “specific and expedient remedies for complaints, through a disciplinary board that could suspend or revoke” the license of a contractor, or impose fines. “It is important to note that from a consumer protection standpoint; this Act is almost singularly one of its kind in that it incorporates a consumer code in the Second Schedule to the Act. It seeks to ensure that the clients are treated fairly; know what service levels to expect, be given reliable information and be aware of the Scheme created by the legislation and how their claims may be speedily resolved,” said State Minister Johnson.

“While these provisions are applicable to residential homes, with values up to $500,000 it is significant as this represents the more vulnerable category of consumers who need these safeguards,” Johnson explained to the contractors that the Act includes clauses for the alignment of Construction Contractors with their international counterparts, which is most valuable to contractors who seek to enter the international market or bid for jobs funded by international agencies, such as the Inter-American Development Bank.  “This is critical,” he said, “for the local market which has been unable to take advantage of these opportunities, in past times.”

“Another major component of the Act is the provision for dispute resolution.  Under section 38 of the Act, a client and the builder may enter into a written agreement to be bound by dispute resolution processes; mediation in the first instance.  The procedure for mediation in any agreement between the client and the builder or in any other kind of construction contract shall be governed in accordance with regulations under the Act,” said State Minister Johnson.

“Should mediation fail, the parties may agree to be bound by a written arbitration agreement.  In the written agreement, provisions must be expressly incorporated stating that a dispute resolution process will be utilized in the event a dispute arises about the performance of construction work by the builder.  In the case arbitration is used, the process should be determined by the applicable provisions of the Arbitration Act of 2009, number 42.”

State Minister Johnson read out a list of advantages contractors can expect by incorporating a mediator for arbitration to resolve disputes.  He said an impartial tribunal offers resolution without further delay or expense; the client and the builder are free to work together to resolve their dispute, and parties can both expect the court will not intervene as codified in the Arbitration Act.  He concluded that the client and the builder also have the option of filing litigation in Supreme Court.

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