Court kills BPC tender challenge on a technicality
Spira Tlhankane | Monday September 21, 2026 06:00
This comes after the High Court found that the companies behind the case had failed to establish their legal standing to sue. Justice Onkagetse Pusoentsi dismissed the application by Energy Integrated Tech-Solutions (Pty) Ltd, Energy Integrated Tech-Solutions (Pty) Ltd, and Zhejiang Yongtailong Electric Joint Venture, with costs to the first and second respondents.
The judgment, delivered in Gaborone recently, effectively ended the challenge before the court could determine whether BPC had unlawfully opened the tender to international bidders.
At the heart of the case was a BPC tender for the “supply and delivery of three-phase split smart meters, single phase split smart meter and customer interface to Gaborone warehouse – under vendor managed stock for two years” under Tender Reference No. 7292/01.
The tender was awarded to the second applicant and other respondents in varying percentages. Energy Integrated initially approached the court as the sole applicant, seeking urgent interim relief to stop BPC from finalising and implementing the tender awards.
Its substantive complaint was that BPC should have used the Open Domestic bidding method prescribed by Regulation 14 of the Public Procurement Regulations, 2023, read with Section 76 of the Public Procurement Act, instead of Open International Bidding.
But the procurement fight never got off the ground as the court found that Energy Integrated itself had not submitted a bid for the disputed tender.
Instead, the bid had been submitted by the joint venture, which was only brought into the proceedings later after BPC challenged Energy Integrated's locus standi.
“I agree with the first and second respondent’s argument that such late addition and/or substitution of the joint venture as an applicant was an admission by the first applicant that it (first applicant) did not have locus standi to interdict the award and implementation thereof,” Pusoentsi said in one of the judgment's most striking passages.
“There cannot be any explanation other than that.”
The judge went further, finding that the company which had actually submitted the bid was the entity with the more obvious direct interest in the tender.
“In fact, the fact that it is the second applicant which may have direct and substantial interest by virtue of it being an entity which has submitted a bid comes out clearly from the affidavit which was filed in support of the joinder application. As for the first applicant it was a stranger to the process and accordingly lacks the requisite legal standing.”
The court also noted that Energy Integrated had not pleaded exceptional circumstances, such as public interest or fraud, that might have clothed it with locus standi.
Nor, according to the judgment, had it claimed that it had been unlawfully prevented from participating in the tender process or that it was suing on behalf of the joint venture. Although the joint venture was eventually joined to the case, no supplementary affidavit was filed to establish its legal standing. The judge was particularly scathing about the manner in which the joint venture was brought into the proceedings, describing the move as an attempt to rescue the original application.
“Turning to the second applicant the little said about it the better. As I indicated above, it was hastily and desperately substituted as an applicant late in the day in an attempt to cure thefirst applicant’s lack of legal standing,” he emphasised.
Pusoentsi said the move missed what he regarded as a fundamental procedural step. The judge found that the failure was fatal because a party cannot simply acquire standing through being joined to proceedings.
The court made it clear that neither the respondents nor the court itself could cure the defect.
“Without locus standi having been established this court cannot confer it on the second applicant. Neither could the Respondents consent to it. The court did not and could not condone it either.”
“It logically follows that the point on it lacking locus standi must succeed. The applicants having failed to establish their locus standi, the enquiry should end here as this court cannot proceed to adjudicate over invalid proceedings.”
Pusoentsi said as he shut the door on the tender challenge. The judge explained that locus standi is the right to bring an action or be heard by a court, and that only parties with a direct and substantial interest in a matter have the right to be joined as parties.
The irony of the case is that Energy Integrated's challenge was built around citizen empowerment and procurement rules, with the company arguing that BPC's decision to open the tender to international companies was contrary to the spirit of the Public Procurement Act. But before the court could decide whether those arguments had merit, it had to determine whether the applicants were properly before it, and they were not.
The court therefore upheld the respondents' locus standi objection and dismissed the application with costs.