Tender dispute delays classrooms construction

Mpho Mokwape | Friday February 22, 2019 14:47

This week, the Lobatse High Court interdicted the council from going ahead with the project by re-advertising and awarding the disputed tenders.

The interim interdict by the court came in the wake of the contractors having taken the council to court for cancelling the tenders that were awarded to them in August 16, 2018.

“The council is ordered not to re-advertise or do anything until the final judgement on April 12,” reads the interim order.

The companies; Dupa Enterprises Corporation, L & H Construction, Julu Investments, Cornicles Building Construction, and Chareu Investment had sought interdict for cancellation of the tenders without any reasons pending a review application.

They were awarded the tender individually, which was meant for the construction of educational facilities at these schools: Komana, Toteng and Legothwana Primary Schools, Boyei, Boseja and Disaneng Primary Schools, Etsha 1, Shambombo, Koshonya and Etsha 13 Primary Schools, Shakakwe, Samchima and Kathiana Primary Schools, Kajaja Primary School, Mohembo Primary School and staff houses at Mogolokgwane Primary School.

According to court documents, the companies had a rude awakening immediately after coming back from the festive season, January 4, 2019, when they found letters on their desks cancelling the tenders.

In one of the companies’ court documents, they had indicted that they had shut down their offices at the beginning of December 2018, as it was customary in the construction industry and upon arrival from the holidays on January 4, they found letters dated December 18, 2018 to the effect that the tenders had been cancelled.

“The applicants were not given reasons for the cancellation as had been specifically undertaken, nor had they been given an opportunity to make representations as to why the tender should not be cancelled in the first place,” read the papers.

The companies said upon filing a court case that was when the council gave them the reasons for the tenders’ cancellation dated January 21, 2019.  However the council although does not dispute awarding of the tenders, it denies that the cancellation was without merit. 

In its replying affidavit by Gobe Mudongo, the district council denied that the tenders that were awarded had been unlawfully cancelled, as the applicants were not given reasons because the explanation did not indicate that the cancellation was without merit.

“As I have stated, the tender document was explicitly clear that the applicants would be informed of the decision to cancel rather than be called to come and defend or endorse the decision to cancel,” he said.

He explained that it was the district’s position that the applicants were not entitled to an interim interdict of any sort and irregularities were found to exist during the review by Appeals Board and thus its cancellation, and it is only fair to call for re-tendering of the projects. 

Mudongo noted that the applicants have no legal binding rights to the tender and the district also has no legal obligation towards them, hence there can be no right of remedy that they can talk about.

“I am perplexed why the applicants would want to review a tender that they have not been contracted to.

Theirs was a best evaluation tender and upon and the council realising and acknowledging some mistakes in the assessment , we were left with no choice but to cancel the whole process and start all over again,” he said.

The case was before Justice Ranier Busang and Uyapo Ndadi represented the applicants while Lecha and Associates represented the district council.