REJOINDER: RE: NCA CASE
I wish, humbly, to exercise my constitutional right to a rejoinder over your various publications of May 24 2017 on and about a National Security (NS)/National Communications Authority (NCA) transaction about which my company is connected.
I do this very reluctantly because of the confidential nature of the contracts involving very sensitive matters of national security.
The security implications and contractual obligation of utmost confidentiality, notwithstanding, I feel compelled in the present circumstances, and for what I perceive should be in the public interest, to share the hard facts in the hope, sincerely, that you and all would be properly guided by same.
Please take note of the following accordingly:
1) That there exist contracts duly executed on December 17 2015 between Infraloks Development Limited (IDL) and the NCA and between IDL and NSO Group Technologies Limited – an Israeli company, and these remain binding contracts not impeached in any way whatsoever by either party.
2) That IDL which has been in existence over six years in Ghana was contracted by the NCA as the RESELLER of anti-terrorist system as part of the country’s efforts to equip itself and stand ready to prevent and fight off terrorists.
3) That the contract involved a sum total of $8,000,000 out of which $6,000,000 was to be due to NSO with certificate of end-user from the Ministry of Defence – Israel.
4) That the duties and responsibilities of NSO and IDL were clearly embodied in the contracts with minimal role by the NCA representing the Republic of Ghana as the end-user.
5) That initially, the payment to NSO by IDL was to be made minus a commission agreement to be paid by IDL to another Israeli company – Aggura, but amendments by way addendum to the original contract with NSO required full payment to NSO and for NSO to deal directly with Aggura.
6) That NSO teams always visited Ghana through Aggura under IDL facilitation, and that I committed myself to assisting the state in what I found to be a most critical undertaking to secure the safety of citizens and all persons within the country.
7) That NCA did make a first tranche payment of $4,000,000 in accordance with the terms of the contract with NCA, and that it is critical to appreciate the initial payment terms with NSO as fully disclosed below:
The System Consideration shall be paid by the End-User to the Company in three (3) installments as follows:
(a) 50% of the System Consideration shall be paid within 15 Business Days as of the Effective Date (the “First Installment”).
(b) 35% of the System Consideration shall be paid upon the provision of a written notice from the Company, certifying that the Hardware Equipment was delivered to the End-User’s site.
(c) 15% of the System Consideration shall be paid upon the provision of a written notice by the Company to the End-User confirming that the Deployment of the System at the End-User’s site was completed (the “Commissioning Notice”).
Support Period Consideration
The Support Period Consideration shall be paid in one payment, in advance of each Support Period.
8) That upon first tranche payment by NCA to IDL, I did immediately instruct the bank to transfer $3, 000,000 to NSO as per initial contract payment terms with NSO, but the bank declined the transfer request on grounds of Bank of Ghana rules and regulations on forex transfers of such amounts of money requiring specific documentation as precondition.
9) That NSO sought clarification and were put in contact with the bank which informed them directly and supplied the specific BoG rules and regulations prohibiting the initial payment terms, and that this resulted in amendments to the terms by way of a memorandum requiring that:
a) The Reseller shall pay the Company the First Instalment (i.e. USD1, 000,000 – One Million United States Dollars) within three (3) Business Days following the receipt of the Bank Guarantee (as defined below).
b) The Reseller shall pay the Company the Second Instalment (i.e. USD3, 000,000 – Three Million United States Dollars) – “the First Commissioning” upon provision of a written notice from the Company certifying that:
The Hardware Equipment and License were delivered to the End-User’s site,
The Company performed the Deployment, provided software set-up, installation and configuration services (the “Software Services”),
The Company presented to the End User, on site, the capabilities of the system on a sample of two devices per each Operating System (i.e. Android, IOS and Blackberry), as described in Exhibit A-1, and
The bank receives from the end user formal confirmation from the end user to the reseller and the supplier that (2a), (2b), and (2c) have been completed.
c) The Reseller shall pay the Company the Third Instalment (i.e. USD2,000,000 – Two Million United States Dollars)- “the Second Commissioning” upon provision of a written notice from the Company certifying that:
The Training and Deployment at the End-User’s site was completed.
Company acceptance test has been performed.
as of the date of the letter the Reseller is provided with the Twelve (12) months warranty, and
The bank receives from the end user formal confirmation from the end user to the reseller and the supplier that (3a), (3b), and (3c) have been completed.
10) That the bank also made IDL sign an undertaking to provide Customs Documentation covering the clearance of the hardware equipment from the Airport, even though NCA instructed NSO to address the Airway Bill to IDL and National Security Coordinator.
11) That the equipment was cleared by NCA with the promise to supply IDL Customs Documentation covering delivery of the hardware equipment as per the IDL undertaking to Bank, NCA has since June 2016 when it cleared the equipment not provided the Customs Documentation covering the clearance to IDL despite persistent demand.
12) That after the clearance, IDL facilitated a visit of a team of technicians from NSO to Ghana to install and commission the system, and that I was informed, two weeks later, by NCA that the installation and the commissioning of the system had been completed.
13) That it is significant to note that IDL was not involved in the operational side of the transaction for what was said to be genuine national security reasons, informing the bank’s requirement for written confirmation by NCA to IDL on completion of each phase of the project.
14) That in spite of this, it would be discovered NCA, curiously, had written only to the bank and NSO to confirm, among others, delivery of equipment and installation of same by NSO.
15) That the non-provision (physically) of the required documentation in June 2016 per terms meant:
i. that the contractual term requiring NCA to, among others, provide IDL with a formal letter confirming satisfactory completion by NSO of each phase of the project before payment could be effected was not met;
ii. that the bank would continue to insist it was unable to accede to requests for the transfer to NSO because the undertaking with the bank including to confirm installation and commissioning was with IDL and not NCA;
iii. That the bank’s requirements and those of the BoG on forex transactions in such amounts were not met hence the bank was unable to accede to requests from IDL to make any further transfers on the basis of NCA’s bare and unapproved official communication directly to it.
16) That the sponsor (NCA), in the meantime, sought through its signatory to the contract and obtained sums in amounts allowed by forex transaction regulations and same reaching a cumulative gross amount of about $1,500,000.
17) That after several discussions with NCA on the issues on the customs documentation and need for written confirmation by NCA to IDL of completion of the second phase of the project by NSO and confirmation of funds to complete the transaction, correspondence from IDL to NCA including on 22nd December 2016 were completely ignored by NCA.
18) That it bears emphasis that I have informed the authorities that, out of the total amount of $4,000,000 NCA transferred to IDL, $1, 000,000 was successfully transferred to NSO, NCA’s signatory to the contract has sought and obtained a cumulative gross of about $1,500,000, and that IDL still held $1,500,000 which NSO’s portion could not be transferred for the stated reasons.
19) That obviously the transaction could not be completed because NCA did not meet its obligations to IDL as per the terms of the contract with it, having, among others, failed to provide required documents to facilitate payments to NSO as well as NCA’s outstanding obligation of 2nd and 3rd tranche payments of a total of $4,000,000 to IDL.
20) That NSO, whom NCA later informed IDL that it had paid $2,000,000, continue to demand payment from IDL for completion of second phase of the project using and relying on a letter from NCA to NSO which represented that the installation and commissioning phase of the project was complete, and that NSO insists that payment obligations were undertaken by IDL, threatening a suit as the overdue amount is subject to a late payment fee at a daily rate of 0.04%.
21) That I am very disappointed to discover, courtesy the National Security Minister, in the most shocking fashion that contrary to representations by NCA including via said letter of June 10 2016 from NCA to NSO, that the system was sitting in someone’s garage.
22) That these details have been made available to the BNI in utmost good faith and without prejudice as I give my fullest cooperation in its investigations.
23) That IDL believes in due process in the democratic dispensation and accordingly have our lawyers in readiness to, in due course, assert my rights and those of the company under the contract with the Republic through the appropriate lawful forum should same become the inevitable resort.
George Oppong – IDL