The Ghanzi District Council has overturned the suspicious P12 million construction tender just weeks after the High Court of Gaborone blocked it.
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, and after the awarding of the tender, Phangastin Projects took the council to court citing irregularities.
Through consent court order issued yesterday the council has now decided to overturn the tender to BBTwelve, and awarded it to the applicant Phangstan Projects.
Before Justice Bengbame Sechele the two parties told court that they had decided through a consent order to settle the matter out of court. Justice Sechele made the order final after the two parties said they were in agreement to end the matter.
According to the order it stated among other things that the decision of Ghanzi District Council to award the tender to BBTwelve be set aside, the contract signed between the two parties regarding the tender be declared null and void. “The tender now awarded to Phangstan Projects and that within seven days of the order the Council shall avail the necessary documents, contracts for the tender and all related documents to singing by Phangstan Projects,” further stated the tender.
Initially through a court order early in February, 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 had 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.
The court was issued after the Judge agreed with the applicant, Phangastin Projects, that the tender should be reviewed in line with Act and Regulations of awarding tenders.
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 had argued that the tender was awarded without following tender rules and regulations therefore it should be reviewed.
They 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 Evaluation and Financial is in congruence with least cost method,” stated the applicant.
Leburu during submissions 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 despite 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. However the Council through principal state counsel Eric Botshelo had countered the application and sought for the order not to be made absolute, arguing that 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 had reviewed it 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 argued.
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.
He had argued 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.