Publishers lose case against MoE on disqualified books

CHANDAPIWA BAPUTAKI
Staff Writer | Thursday April 21, 2011 00:00

 

They further sought the court to declare that the books qualify to be included in the core list of the 2011 form two-prescription books.

In his assessment, Justice Key Dingake said most of the complaints by the applicants relating to bias and vested interest are not backed up by any evidence. 'They are simply bald assertions,' he said adding that there was the complaint that the stipulations of Invitation To Tender (ITT) were not observed but from his inspection ITT sets out the conditions in which the tender offers must comply with. 

He stated that there is no evidence at hand, to establish that there has been any fundamental breach of its stipulations. 'The respondents concede to mutilation and blotting of some material but they say this was done in the spirit of fairness to guarantee anonymity and to level the playing field,' he said adding that 'this was one area where had the applicants been able to demonstrate to the court that the mutilation was extensive or pervasive and or was done at such a scale that it affected the intergrity of the entire process, I may have been persuaded to set aside the tender award.'

He said the applications made sweeping allegations that the respondents were incompetent and did not apply their minds to the issues or acted unfairly but he could not find evidence to all.

The judge said the issue of conflict of interest got him thinking hard because he believed that justice may not seen to be done if a strategically placed officer such as the Director is allowed to participate in the process even where such conflict is disclosed. 'What however diluted this aspect is that it was not fully substantiated to give the court an idea of how it manifested itself or what impact it had on the marks awarded to the applicants' books,' he said.

Dingake stated that on the evidence provided he could not come to the conclusion that the Public Procurement and Asset Disposal Board acted unreasonably and failed to apply his mind. He explained that a court dealing with review is not entitled to concern itself with the merits of the decision as to whether or not the decision was correct.

'What is clear is that this court cannot take the position of an entity authorised by an Act of Parliament to take a decision. It cannot substitute the decision of the repository of power simply because it is of the view that it could have taken a different decision,' Dingake said.

According to the particulars of the case, on February 7, 2011 Medi Publishing Company and Pentagon Publishers approached the court urgently seeking wide-ranging relief, which included inter alia, an order restraining PPADB from proceeding further with the procurement of Secondary textbooks.

In particular, the applicant prayed that the MoE be interdicted from causing or permitting signature of contracts with publishers pursuant to any award made pursuant to the tender under reference pending the determination of the review brought or to be brought by the applicants against the decision of PPADB. Upon reading the papers filed, Dingake granted the interdict.