Court stops P662m direct tender
Goitsemodimo Kaelo | Wednesday September 3, 2025 10:05
The court found that none of the conditions prescribed under Regulation 20 are met, and the convenience of the encounter of the benchmarking team with Emeritus Training Academy (Pty) Ltd (South Africa) does not qualify as justification for the direct procurement. The tender, a Service Contract for the Implementation of an Integrated STEAM E-Learning Solution, Early Childhood Learning Solution, Coding & Robotics Solutions & Teacher Capacity Building in the Ministry of Child Welfare and Basic Education, is the subject of a court case between the ministry and Techboe (Pty) Ltd.
The latter, a local company, had approached the court, challenging the direct awarding of the tender, estimated at over P662m, to rival bidder, Emeritus Training Academy (Pty) Ltd. In the order delivered on Friday, Justice Bugalo Maripe also found that the ministry failed to adhere to prescribed procurement processes, including: i) Failure to confirm availability of funds before commencing a procurement activity contrary to Section 69 of the Act as read with Regulation 39 of the PP Regulations; ii) The ITT excludes the returnable Form M -Declaration Form for Beneficial Ownership contrary to Regulation 96, and iii) The bid document does not include an instruction to a bidder to indicate the kind of information the bidder would not want to be disclosed by the procuring entity to a third-party contrary to Regulation 44 (2)(k). Maripe said the ministry failed its obligation to be transparent, fair, and to use the most competitive procurement methods to ensure competition amongst contractors by using the most efficient and competitive methods of procurement to achieve the best value for money; and take into account the fair and equitable treatment of all contractors in the interest of efficiency and the maintenance of a level playing field as required by Section 40 of the PP Act. “The ministry failed to provide sufficient scope for the procurement. The scope in sufficiencies effectively allows the bidder to dictate the risk and cost profile of the project, potentially in ways that may not necessarily favour the Government of Botswana. It is therefore not possible that the ministry can achieve the requirement for value for money where the procurement activity is unplanned, not budgeted for, and poorly conceptualised,” reads part of the order.
Maripe further ordered that the bid by Emeritus Training Academy Botswana (Ply) Ltd has significant gaps and areas of ambiguity, which pose as risk areas for uncontrolled expenditure that has the potential to exceed the current bid price during implementation. “Emeritus Training Academy Botswana (Pty) Ltd, in the bid submission, has not provided verification of its experience, nor has it substantiated its claim that it has the capacity to implement the required services. Emeritus Training Academy Botswana (Pty) Ltd potentially stands to be in contravention of Code 3.2 of the Code of Conduct for Contractors which provides that a contractor shall not be involved in the misrepresentation of a material fact of the ownership, management, and control, as well as the skilled and specialist positions: of existence of a contractor in order to appear compliant with citizen reservation and citizen preferential treatment and for material gain, advancement or advantage in the procurement process,” reads the judgment. The court said in light of the findings by the Public Procurement Regulatory Authority (PPRA), and in the exercise of its powers under the Act and Regulation 134(3) of the PP Regulations, the authority hereby issues a directive as follows: The ministry is hereby ordered to cancel the procurement activity with immediate effect, for inappropriate and unjustified use of the direct procurement method; and for failure to adhere to prescribed procurement processes.
The court ordered the ministry to secure funding for this project before any re-tendering that may occur, establish an appropriate structure for the management of this project, develop appropriate terms of reference for this project and ensure that the scope is sufficient, and manage all project risks. Further, the ministry must use competitive bidding methods for this project, and/or sufficiently test the market before any short-listing of potential bidders, and ensure separation of duties and independence of function in the execution of the procurement functions for any procurement activity. Additionally, the court ordered Emeritus Training Academy Botswana (Pty) Ltd to be referred to the Suspension and Delisting Committee for investigation into possible contravention of Code 3.2 of the Code of Conduct for Contractors. In accordance with Regulation134 (4) of the PP Regulations the Accounting Officer shall respond in writing to the directive and the report here with submitted, within 14 days from the date of receipt of the directive, indicating any action to be taken and shall, in addition, prepare and submit to the authority a report on the implementation status within three months from the date of receiving the directive.