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Court blocks ‘suspicious’ P12m housing tender

MPHO MOKWAPE
Construction site in Gaborone, the industry always attracts controversial decisions
The Gaborone High Court has put on hold the construction of 10 teachers' houses in the Ghanzi District Council after one of the bidders challenged the decision to award the tender, citing irregularities.

The High Court of Gaborone has blocked a P12 million tender awarded by Ghanzi District Council to a construction company.

The tender for the proposed construction of 10 staff houses at Charleshill was awarded in 2014 to a company called BBTwelve Investments. A total of 13 companies had submitted the tender documents.

Through a court order issued by Justice Tshepo Motswagole, Ghanzi District Council were interdicted, prohibited and restrained from proceeding with the tender or directing that any work be done on it. BBTwelve were also interdicted, prohibited and restrained from carrying out any work on the site of the tender awarded. The court ordered that until the hearing and determination of the review proceedings on the tender was done, the two respondents suspend its work to be carried out.  Justice Motswagole made the final order on Monday after agreeing with the applicant, Phangastin Projects, that the tender should be reviewed in line with the Act and Regulations of awarding tenders.

The order was initially issued on January 27, 2014 as an interim relief pending a return date for the respondents to show cause why the order should not be made absolute, and why they should not be denied from going ahead with the tender work.

Phangastin Projects through its attorney, Friday Leburu had filed an urgent application with the High Court seeking that the tender be suspended until it was reviewed.

The company argued that the tender was awarded without following tender rules and regulations therefore it should be reviewed.

Leburu further argued that despite the tender being published in the Botswana Government Gazette and floated with the Local Procurement and Asset Disposal (LAPAD) Act as read together with the LAPAD Regulations, the district council still went against the rules and regulations to award the tender.

“The Evaluation and Award Methodology to be applied by the Procuring Entity being Ghanzi District Council under the LAPAD Act and LAPAD Regulations referred to as Cost

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Evaluation and Financial is in congruence with least cost method,” he said.

Leburu said the recommendation for awarding a tender was defined clearly indicating that the “lowest priced bid, which was within council estimate range, qualified, compliant and responsive shall be the best evaluated bid and shall be recommended for award of contract”.  He further explained that tendering procedures as defined in the tender documents have to be in line with the Act and Regulations.

He said this is despite the fact that the tendering Board decided to re-award the tender to the same company without valid reasons after an appeal was lodged with the Appeal Board.

“We fully understand that meeting all the requirements may not guarantee that one gets the tender but the appeal should have been considered more so that my client had a lower bidding price than the company that won the tender,” he said.

Countering the application and seeking for the order not to be made absolute, principal state counsel Eric Botshelo said the council’s Appeals Board had dealt with the matter and resolved it. He said the Appeals Board received the appeal from the applicant and was reviewed in line with the regulations of the tender procedures and later on November 14, 2014 yet again awarded the tender to the BBTwelve Company after it was satisfied with its review.

“Following the direction by the Appeals Board the Adjudication Committee agreed and ordered that the initial company be awarded the tender,” he said. He argued that the council awarded the tender simply because it was implementing the decision of the Appeals Board as it believed that procedure was followed when the tender was awarded. Botshelo added that the applicant had an idea for a long time that the tender was given to BBTwelve Company and that the parties would sign a contract and that the site would be handed to the contractor to commence work.



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