High Court dismisses challenge in Mogoditshane roads tender dispute

Mpho Mokwape | Monday March 2, 2026 06:00

The case arose after the Mogoditshane/Thamaga District Council awarded the roads project tender to Evolution Engineers/Mason Group JV. The estimated value of the project is P337,562,741 (VAT inclusive), making it one of the more significant infrastructure contracts in the district.

Following that, several unsuccessful bidders, ZTK JV, Van & Truck Hire (Pty) Ltd, Asphalt Botswana (Pty) Ltd and Estate Construction (Pty) Ltd challenged the award.

They argued that they were unfairly disqualified during the evaluation process and that the tender had not been handled in line with procurement laws.

The Public Procurement Tribunal upheld their complaints and ordered that the award to Evolution JV be set aside. It further directed that the bids be re-evaluated and that the process be delegated to another procuring entity. That decision triggered the appeal before the High Court.

In its judgment issued yesterday, the Gaborone High Court judge, Onkagetse Pusoentsi, stressed the importance of strict compliance with procurement laws.

“Public procurement must follow the Public Procurement Act, 2021 and the Public Procurement Regulations, 2023, to ensure fairness, transparency and value for money. Transparency, accountability, fairness and value for money are key in a functioning procurement system,” he said.

The judge noted that public works are financed by taxpayers and that those entrusted with procurement responsibilities must act within the confines of the law.

Pusoentsi described adherence to the legal framework as the “cornerstone of a clean, fair and equitable system.”

One of the central issues in the appeal concerned the disqualification of ZTK JV. The company had been disqualified for allegedly making alterations to the tender documents. Evolution JV argued that this amounted to a clear breach of the tender conditions and justified rejection of the bid.

However, the Tribunal had found that the alteration was not a material deviation from the tender requirements. It held that ZTK JV had substantially complied with the instructions in the tender document.

The judge agreed with that assessment and found that the procuring entity’s main concern was the manner in which the alteration was made, rather than any substantive change affecting the competitiveness or integrity of the bid.

He held that even if the alteration amounted to a deviation, it did not fall within the category of material deviations that would automatically justify disqualification under the regulations.

As a result, Pusoentsi concluded that the Tribunal was correct in finding the disqualification of ZTK JV unreasonable.

The court also dealt with the disqualification of Van & Truck Hire, Asphalt Botswana and Estate Construction. These bidders had been disqualified for allegedly failing to meet the minimum 10-year experience requirement set out in the tender document.

The procuring entity had interpreted the requirement strictly and concluded that the companies did not satisfy the threshold under the evaluation criteria.

The Tribunal, however, found that the interpretation adopted by the council was flawed and inconsistent with the purpose of the tender. It reasoned that the experience requirement was intended to assess whether bidders had the necessary understanding and technical capacity to execute the project.

The judge endorsed this reasoning, saying what matters in his view is for the bidders to demonstrate the technical know-how of the industry.

“The interpretation used to disqualify the companies introduced extraneous requirements not contained in the tender document. In doing so, it unfairly excluded bidders who had demonstrated relevant experience and capability,” he said. Again, the judge found no fault in the Tribunal’s conclusions.

Another major issue in the case was the role played by the Procurement Oversight Unit (POU). Although the involvement of the POU was not one of the original complaints, the Tribunal raised concerns about its conduct after reviewing the record.

Evolution JV argued that the Tribunal exceeded its jurisdiction by raising this issue on its own and by granting remedies that were not sought by the parties.

Pusoentsi rejected this argument, saying the parties had been given the opportunity to address the issues raised by the Tribunal.

“Supplementary arguments had been filed, and the record reflected that the matter had been ventilated before the Tribunal reached its conclusions,” the judge said.

On the substance of the issue, the judge agreed with the Tribunal’s concerns, explaining that it behaved like a big brother in the room, referring to the conduct of the Procurement Oversight Unit.

He observed that the POU appeared to have acted both as “a player and a referee at the same time,” particularly when it overruled the findings of the Independent Review Panel that had initially upheld the bidders’ complaints. The judge said the dual role tainted the procurement process.

“Viewed with magnifying glasses, as it should be, given the magnitude of the project, the conduct of the Procurement Oversight Unit was, in my view, a matter which could not be ignored,” the judge said.

Evolution JV also argued that the remedies ordered by the Tribunal were unlawful, excessive and impractical. It contended that ordering a full re-evaluation, especially after the identity of the successful bidder had already been made public, would undermine the integrity of the process.

But the High Court held that the Tribunal acted within its powers under the regulations. It noted that the Tribunal has authority to grant “such other relief as may be deemed reasonable and necessary.”The court found that the order for re-evaluation and delegation to another procuring entity was justified in the circumstances.

“To order the very entity whose conduct has been found to be wanting to conduct a re-evaluation will be an exercise in futility,” the judge said.

The court added that delegation of procurement functions is recognised under the regulations and is not foreign to the legal framework governing public procurement.In the final analysis, the judge said that the appeal lacked merit and could not succeed. “The appeal is dismissed with costs,” the court ordered.

It confirmed the Tribunal’s decisions in the related cases, with a slight variation that the re-evaluation will be limited to the parties involved in the appeal.

Evolution Engineers/Mason Group JV and the Mogoditshane/Thamaga District Council were also ordered to jointly and severally pay the costs of an earlier application for a stay of execution pending the outcome of the appeal.