The court found that none of the conditions prescribed under Regulation 20 are met, and the convenience of the encounter of the benchmarking team with Emeritus Training Academy (Pty) Ltd (South Africa) does not qualify as justification for the direct procurement. The tender, a Service Contract for the Implementation of an Integrated STEAM E-Learning Solution, Early Childhood Learning Solution, Coding & Robotics Solutions & Teacher Capacity Building in the Ministry of Child Welfare and Basic Education, is the subject of a court case between the ministry and Techboe (Pty) Ltd.
The latter, a local company, had approached the court, challenging the direct awarding of the tender, estimated at over P662m, to rival bidder, Emeritus Training Academy (Pty) Ltd. In the order delivered on Friday, Justice Bugalo Maripe also found that the ministry failed to adhere to prescribed procurement processes, including: i) Failure to confirm availability of funds before commencing a procurement activity contrary to Section 69 of the Act as read with Regulation 39 of the PP Regulations; ii) The ITT excludes the returnable Form M -Declaration Form for Beneficial Ownership contrary to Regulation 96, and iii) The bid document does not include an instruction to a bidder to indicate the kind of information the bidder would not want to be disclosed by the procuring entity to a third-party contrary to Regulation 44 (2)(k). Maripe said the ministry failed its obligation to be transparent, fair, and to use the most competitive procurement methods to ensure competition amongst contractors by using the most efficient and competitive methods of procurement to achieve the best value for money; and take into account the fair and equitable treatment of all contractors in the interest of efficiency and the maintenance of a level playing field as required by Section 40 of the PP Act. “The ministry failed to provide sufficient scope for the procurement. The scope in sufficiencies effectively allows the bidder to dictate the risk and cost profile of the project, potentially in ways that may not necessarily favour the Government of Botswana. It is therefore not possible that the ministry can achieve the requirement for value for money where the procurement activity is unplanned, not budgeted for, and poorly conceptualised,” reads part of the order.
