China Jiangsu, gov't clash over P1.5bn tender
Mpho Mokwape | Friday April 5, 2019 13:12
The court clash between the duo is reportedly bigger than just the cancelled tender as the government considers the company a national security threat. Further reports suggest that the State has been advised to cease all dealings with the company.
According to a confidential letter dated April 2, 2019 from the director general of Directorate of Intelligence and Security (DIS), Peter Magosi addressed to the Permanent Secretary in Ministry of Land Management, Water and Sanitation Services the Ministry was advised to terminate all deals with the company due to security reasons.“Pursuant to the Intelligence and Security Act, this Directorate has been following the activities of China Jiangsu International, a company incorporated in Botswana.
The intelligence gathered thus far suggests that the above company has been involved in activities that border on the threat of national security,” reads the letter.
However the company, which was awarded the now disputed tender to do works in Maun that included the design, supply and build of water reticulation, does not seem to like to go down without a fight. Hence, it has since filed an urgent application before court to interdict the re-awarding of the tender to its rival company, Zhengtai Group Botswana.
According to court documents for Jiangsu filed on March 27, 2019 the company seeks the matter to be treated urgently and interdicts the Ministry from re-awarding the tender while a review application was still pending for court.
The company wants the Public Procurement and Disposal Board (PPADB) decision to re-award the tender to their rival set aside pending a review proceedings they have instituted against the ministry, PPADB and the Attorney General for the withdrawal of the tender.
In the founding affidavit of the Managing Director, Cui Wanglin they were awarded the tender on December 30, 2018 at a price of P1, 568,877,164.38. He explained that subsequent to the award there was a delay of which they approached their attorneys to enquire about it. “We received information that the procuring entity being the ministry was beginning to conduct itself contrary to the provisions. PPADB replied that there was a submission from the ministry but the author would not divulge the details of the submission dated January 21, 2019,” he said.
Cui said on February 7, 2019 they received correspondence that the tender was withdrawn and that reasons for the decision could not be disclosed forcing the company to institute a review of proceedings before the court on February 15.
“The substance of the review application was to review and set aside the decision of PPADB to withdraw on the basis of the ministry,” he said. Cui noted that the now interim interdict application is a result of the re-awarding of tender while the review application was still pending. Responding to the company’s documents PPADB denied that they were forced by the ministry to terminate the tender. Acting Executive of PPADB, Elijah Motshedi said the allegation that the ministry railroaded them to withdraw the tender had no factual basis as they merely acted according to the law.
“The fact that a contract has not been concluded with the applicant does not avail the applicant that it was unlawfully cancelled,” he said.
He explained that there was no doubt that the company was interested purely in its narrow commercial interest as opposed to the overwhelming public interest in having the tender executed expeditiously.
Further Motshedi pointed out that the company could not blame them for its failure to obtain an interdict and that execution of tenders could not be stopped by the mere filing of applications at court rather should only be stopped by court orders.
Meanwhile the Attorney General (AG) and the Ministry has also opposed the application accusing the Chinese company of acting holier than thou and pretending to care about public interest. In an answering affidavit, Acting Director for the Programme Management Office in the ministry, Gabalemoge Moanakwena said public interest dictates that tenders should be awarded to responsive bidders and those non responsive should be rejected.
“The people of Maun deserve a robust and low maintenance sewage which combines gravity and vaccum systems as per the tender documents and the company’s bid did not have that,” he said. Monthe Marumo and Company acts for the applicant while Rantao Kewagamang Attorneys acts for the PPADB. The AG represents the Land Ministry.