More legal woes in Tshesebe-Masunga road tender dispute
Mpho Mokwape | Friday February 19, 2021 16:07
That is despite Gaborone High Court Judge Michael Leburu’s judgement on the matter.
On February 12, 2021, Justice Leburu issued made a judgement on the matter after one of the failed bidders, Cul de Sac filed a review application challenging the decision to award the tender to other companies other than their company.
Subsequently, Leburu ordered that PPADB should issue the tender to Cul de Sac after explaining that to award the tender or recommend other companies was irrational.
According to reports, the judgement only opened more doors for legal battles from other bidders who felt aggrieved as there have been reported applications back to back.
Currently, there is a filed expedited appeal by the respondents; a stay of execution by another bidder who was initially in the recommendation to get the tender being Landmark Projects while the winner Cul de Sac Company has also filed an application for contempt of court.
However, Justice Leburu’s judgement is clear that the awarding of the tender to LandMark Projects and Van&Truck Hire was null and void in terms of regulations of the procurement. The two companies were said to have previously benefited from the country’s Economic Stimulus Package (ESP) therefore they could not benefit from another government tender.
Leburu explained that the applicant was the only bidder who was technically compliant and should have been awarded the tender with a recalibration and revision of the pricing thereof, occasioned by the delay and price fluctuations.
“The applicant is the only tenderer standing out in all requirements hence a foregone conclusion that it be awarded the tender,” he said.
Leburu further pointed out that the successful bidders ought to have been disqualified at the technical stage of evaluation. He however said the procurement entity moved mountains to have the bid re-evaluated and found to be technically compliant. He noted that the award was even made prematurely before it could even gather information from the officers it subpoenaed which clearly showed bias towards the other bidders.
“It is common cause that the procuring entity’s chairperson had direct dealings with the preferred bitter which was a clear conflict of interest. It is clear that their lip-service to the applicant’s appeal in favour of an appeal by the successful bidders, which was filed at the same time but decided on different dates and immediately followed by a tender award. By the time the applicant’s appeal was communicated to it on January 17, 2020, the tender was already awarded,” Leburu said.
On why the matter could not be referred back to the independent complaints and review committee and PPADB, the Judge said despite resolution to invite original bidders the two entities inexplicably decided to remove the applicant from that list without any reasonable doubt and explanation, adding that there was a concerted effort to disqualify the applicant at all costs.
“The second ground that militates against referring the matter back to the committee and PPADB is that the two exhibited gross incompetence on the interpretation and application of the rules. Initially, the two contended that the tender was an ESP project. Subsequent to that, the two were indecisive and said the ESP criterion was not part of the rules. Such oscillation and vacillation clearly shows the level of incompetence exhibited by the two,” he said.
Furthermore, Leburu said another reason that justified the order was the blatant disregard by the committee to keep proper records as stratified and ordained by the provisions of the PPADB Act.
He said it took the committee 10 months to produce the minutes which were in fact produced only when the noose was tightening around their neck while no reasonable explanation was given for such delay in the production of the impugned minutes except a bold and uninspiring reason to the effect that the minutes could not be found in the archives.
“This is not only shocking but a gross incompetency and as such the committee cannot be trusted to perform its statutory duties with respect to the tender in dispute,” he said.
Meanwhile, the companies that are all in the fight to have the piece of cake on the tender are Bango Trading, Zebra Construction, Landmark Projects and Van&Truck Hire who are all cited as respondents in the matter together with the committee, PPADB and Attorney General.