The High Court in Lobatse is today expected to deliver judgement in a case in which Stocks $ Stocks is fighting over the P429 million tender for the construction of Botswana's second university in Palapye.
The court case was heard by Justice Walia last week. Three interested parties are opposing the Stocks & Stocks' application for interdict, namely the bid winner, China Civil Engineering, the Public Procurement and Asset Disposal Board (PPADB), and the Building and Engineering Services/ministry of Education.
Stocks & Stocks are arguing that they were not informed that they lost the bid. They also argue that the evaluating committee did not consider each and every appendix they submitted before disqualifying it.
The applicants also argue that it is unreasonable adherence to fixed principle to require that bidders have their documents certified by the issuing authority and that disqualification for failure to do so is preference of form over substance.
The applicants also told the Court last week the non-registration of their mechanical subcontractor as a basis of disqualification was unreasonable. They also argue that the evaluating committee disqualified them for not proposing a quantity surveyor and that the PPADB wrongfully endorsed the disqualification on this further ground.
They want the court to set aside the PPADB's decision to disqualify Stocks & Stocks tender, as well as the decision to award the tender to China Civil Engineering.
However, China Civil Engineering's attorney Isaac Seloko told court that Stocks & Stocks has withheld and omitted to disclose important facts to the court with which the court may not have granted the interdict. Those facts included that the award was made as far back as December 19, 2008 and that the contract has long been concluded and design works have commenced.
He also said Stocks & Stocks failed to disclose to court the distinction between its General Operation Manual and the Specific Invitation To Tender( ITT),as well as the relevant clauses in the ITT.
The contractor argues that copies of the documents required as part of tender were not certified by the issuing authority but were either certified by an attorney or a police officer, and that some of the certified documents were scanned copies and not photocopies. The Chinese company also argues that Stocks& Stocks mechanical sub-contractor was not registered for Code 06 ( LPG gas installations).
The PPADB however argues in their papers that it is unnecessary for the evaluating committee to inform all unsuccessful bidders of their failure to succeed. PPADB said it is already under statutory obligation to advertise all award decisions.
For any evaluation to be efficiently conducted it is necessary that it is conducted in stages. "It is for that reason that the first port of call was to check for compliance and it is here that the Applicant failed to proceed further... "
PPADB adds that to depart from the terms of the Invitation to Tender, as the Applicant suggests, should have been done, would be to depart from Section 26 which enjoins the PPADB to treat all contractors equally and also to be consistent with what it puts out to the public that it will do.
As regards to Stocks & Stocks' failure to include a quantity surveyor in its bid, PPADB contends that the applicant would not employ in-house quantity surveyors if these were not important to the tender.
"The fact that it did so proves that a quantity surveyor is essential to the type of work being procured in the tender. Clearly the Applicant should have made mention of this fact in its bid which would rather interestingly have bestowed the Applicant with an advantage over the other bidders in this aspect as it would have been cheaper to use the Applicant for the works. Unfortunately the procuring entity cannot know what benefit it is going to obtain from a bidder unless that bidder spells it out clearly in its bid document".
"The Applicant misunderstood the terms of the tender and now seeks as an afterthought to slip into contention through the backdoor by instituting this application. The tender documents were clear that the Applicant could seek clarification on the terms of the bid at any time bar 14 days before the closing of the tender and that failure to comply with any aspect of the tender would lead to disqualification from further consideration."