Lobatse High Court has granted the Ministry of Transport and Communications (MTC) permission to proceed and conclude contracts of the selective tender for the supply of fuel to Central Transport Organisation (CTO) fuel depots for three months from May to July.
On Tuesday, Justice Tebogo Tau dismissed an urgent application by AIPB (PTY) Ltd seeking the Court to temporarily interdict the Attorney General (government legal representative), the chairperson of the Ministerial tender committee of the MTC, the Public Procurement and Asset Disposal Board (PPADB), Puma Energy and Vivo Energy concluding contracts for the supply of the P60 million three months tender for the supply of fuel to CTO depots pending a review application.
AIPB (PTY) Ltd had contested the awarding of the tender to Puma Energy and Vivo Energy on the basis that the procuring entity had not sought to bring its decision of choosing restrictive domestic bidding within the confines of the provisions of Regulation 58 of the Public Procurement and Asset Disposal Regulations.
It argued that the procuring entity had not demonstrated that the service is available only from limited number of providers; and that there is insufficient time for open bidding due to emergency situation and that no exceptional circumstances have been involved in the request made to the Board to go this route.
AIPB also argued that the procuring entity arbitrarily and unreasonably used the discretion conferred by the regulations in that it chose suppliers by taking into account irrelevant considerations. It submitted that deciding factors ought to have been performance and competitive pricing.
However, PPADB’s contention was that the circumstances pertaining to the requirement meant that there was no other choice, given that the country is in a State of Emergency, than to use restrictive procurement bidding.
It also argued the decision was taken to proceed with interim supply of fuel in order to avert a crisis wherein there would be no fuel supply to the government given that the main tender for the supply of fuel had been interdicted.
When deciding on the matter, Justice Tau said the point raised by PPADB that it used restrictive bidding as there was insufficient time for open bidding stemming from the fact there is an emergency situation brought about by COVID-19, has not been controverted, neither is the assertion that there were exceptional circumstances.
She said the regulations allowed the procuring entity to choose restrictive bidding.
“The procuring entity is therefore not mandated to use this option in circumstances where there is limited number of providers.
The argument by the applicant that the procuring entity violated the provisions of Regulation 58 because there was not limited number does not hold water.
The applicant has not proved that it has a prima-facie right to be selected to bid for the supply of fuel during the months of May to July 2021,” stated Justice Tau.
Justice Tau further dismissed the applicant’s argument that it would suffer irreparable harm if the interdict was not granted.
She said it has not discharged the onus placed on it, of satisfying the Court that it would suffer irreparable harm if the interdict was not granted.
On the balance of convenience, the Court ruled that the public interest far outweighs the applicant’s interest in that the inordinate delay in supplying fuel to the government sites which would be brought by the interdict would adversely affect basic services. Attorney Tshiamo Rantao appeared for PPADB.