A company that won a works contract for the design and build of Phase I infrastructure at Bolelanoto and Senwelo industrial sites in Selebi-Phikwe has obtained a writ of execution against SPEDU (PTY) Limited.
Marcian Concepts has instructed sheriff or his deputy to attach and take into execution the movable goods of SPEDU and of the same to be caused to be realised by public auction the total sum of P31, 823, 337.71 following failure to reach compliance with contract requirements.
On February 11, 2021 Marcian Concepts slapped SPEDU with a P31, 823, 337.71 together with interest at the rate of 8.5 percent on a daily basis following failure to reach compliance with requirements of the contract. Through attorney Mompati Sepego, Marcian Concepts said the Phase 1 project would be fixed at P230, 531, 402.76 and the employer [SPEDU] shall make an advance payment as an interest-free loan for mobilisation and design when the contractor submits a guarantee in accordance with Clause 14 of the FIDIC [International Federation of Consulting Engineers] conditions of contract.
“Following compliance with the contractual requirements, on 26 June 2020, the plaintiff made a request for advance payment in the sum of P18, 327, 019.58 in terms of Clause 14.2 of the FIDIC conditions of contract. Despite lawful demand (which was reiterated on October 2020, the defendant has failed, neglected and/or refused to pay the said amount. Furthermore, in accordance with contractual requirements, the plaintiff carried out works in terms of the contract and submitted interim payment certificate for certification by the engineer as and when contractual milestones had been reached,” Sepego wrote.
He also prays for payment in the sum of P8, 083, 699.38 being amount certified by the engineer per Interim Payment Certificate No.1, payment in the sum of P4, 348, 567.64 being amount Certified by the engineer per Interim Payment Certificate No. 2. He also prays for P1, 064, 051.11 which is interest per Clause 14, 8 of FIDIC conditions of contract, as at January 30, 2021 and it continues to increase. Lastly, the attorney prayed for costs of suit on attorney own client scale and further or alternative relief which they were granted by Justice Gaolapelwe Ketlogetswe on March 25, 2021.
Mmegi understands that SPEDU was given until March 30, 2021 to pay or face attachment. The SPEDU board met on Monday and decided to escalate the matter to Office of the President (OP). The OP decided to ignore the plea . SPEDU
This tender was floated in July 2019 and evaluated accordingly.
Eleven bidders submitted their tenders and these are: Zebra Construction, Estate Construction, Van & Truck Hire, Landmark Projects, Ex Construction, Lempehu Investments, Cowboy Enterprises, Sharps Construction/Letsatsi Investments Joint Venture, Marcian Concepts, Tshepo Tile products and CDK (PTY) Limited. Overall, the evaluation results of the ‘test for compliance’ showed that the Marcian Concepts was the only one qualified to proceed to the next state of the technical evaluation (stage 2). All disqualified bidders were found to be non-compliant on the requirements or proposed personnel such as academic qualifications and incomplete curriculum vitae.
On July 31, 2020 the contractor and SPEDU executed the contract and the project was then commissioned on August 27, 2020; therefore Marcian Concepts was given access to the site in accordance with the provisions of the contract.
On September 4, 2020, SPEDU received a letter from Permanent Secretary (PS) in the Ministry of Land Management, Water and Sanitation Services informing SPEDU that funding for the project was suspended pending investigations by the Directorate of Intelligence and Security (DIS) on the award of the tender. SPEDU was thus advised through the same letter to suspend the works.
Subsequently, the SPEDU Board convened to address the instructions issued by the PS and further resorted to seek legal advice on the matter.
An opinion detailing legal and financial implications was proffered and communicated accordingly to the PS by a way of correspondence dated September 15, 2020, which was never responded to. SPEDU dully suspended the works on October 16, 2020. In response to the notice of suspension, the contractor wrote to notify SPEDU that they intended to sue for the unlawful suspension of the works and the PS was duly notified about these developments through a letter dated November 10, 2020 but did not respond.
On November 11, 2020, the contractor then issued a letter of demand for various claims under the contract and the said demand was received by SPEDU on November 25, 2020. The PS was further informed on November 30, 2020 but did not respond.