This is because he could not trust the Ministry of Water and Human Settlements to do the right thing as they had proved to be biased when dealing with the matter before. Despite the bid having been almost P300 Million cheaper and having passed all stages, Tawana JV, consisting of G4 Civil (Pty) Ltd, Landmark Projects (Pty) Ltd and Asphalt Botswana (Pty) Ltd was initially sidelined and the tender awarded to China Civil Engineering Construction Corporation and Zhon Gan Engineering & Construction Corporation (Botswana) (Pty) Ltd (collectively referred to as China Civil here). The dispute is around Tender No. POU/ MLWA/ DTS/ NCOJANE WATER SUPPLY WORKS/ 0158/ 09102023, a Works Contract for Detailed Designs and Construction of Ghanzi South & Kgalagadi North Villages Water Supply Project.
The Public Procurement Tribunal on November 24, 2024 set aside the decision by the then Lands and Water Affairs ministry’s Permanent Secretary, Dr Kekgonne Baipoledi, to award the tender at P1.8 billion to China Civil. Amongst other orders, the Tribunal cancelled the tender. As if that is not enough, the ministry and its leadership will be investigated for corruption as the Tribunal was left shocked at the discoveries that a lot of irregularities were discovered. China Civil did not appeal the decision of the Tribunal, while Tawana JV did so by issuing the statutory notice of intention to appeal as required by Section 138 of the Public Procurement Act. Both Tawana JV and China Civil contend that the Tribunal was wrong in cancelling the disputed tender. Tawana JV contended that the tender should have been awarded to it because it had the most responsive bid while the China Civil similarly maintain that they are entitled to a substitution order. The Accounting Officer at the Ministry of Water and Human Settlements and the Attorney General who were first and second respondents, however, submitted that the substitution order is undesirable because they have no funds to proceed with the tender and that the court is no expert and is therefore not entitled to step into the shoes of the evaluating committee to award the disputed tender to either party. Both Tawana JV and the China Civil submit that a substitution order is merited and a competent relief in the circumstances of this case. What separated them, however, was who between them should be the beneficiary of such an order.
Delivering his judgment, Justice Kebonang said the debate among the parties concerning the availability of the project funds is easy to deal with. “As both Tawana JV and China Civil point out, in terms of Section 69 (a) and (b) of the Public Procurement Act, 2021, a procuring entity shall not invite a bid....if funds for the bid are inadequate or not available or where the procuring entity has issued a written confirmation that the funds required for the bid are available,” he said. In addition, Justice Kebonang said Regulation 39 of the Public Procurement Regulations, 2023, provides that; A procuring entity shall ensure that funds are available for procurement, and shall, in Form E, set out in Schedule 1, confirm the availability of such funds before commencing a procurement process. Notwithstanding sub-regulation, a procuring entity may commence a procurement process for a scheduled or routine activity if the procuring entity is certain of the availability of funds for such activity. “In the instant case, in an effort to resist the substitution order the 1st -2nd Respondent gives seemingly two contradictory answers as to why the project cannot continue. The first is that funds are no longer available. The second is that the funds available are not adequate. They do not say what happened to the funds nor do they say how much is now available for the project. It is common cause that the procurement process could not have commenced without them confirming the availability of funds,” he said.
Justice Kebonang said it is also common cause that the funds allocated for the project were managed by the ministry and no other. As a party that managed the funds allocated for the project,, he said it was for them to provide a genuine explanation as to what happened to the funds than to provide an explanation that is needlessly bald, vague and sketchy. “Good faith requires that the 1st-2nd Respondents as the custodians of the funds allocated for the project must provide an explanation as to what happened to the funds. They have a higher obligation that goes beyond bald assertions, not only to explain but show where the money went to,” he said. He further said it is not enough to say that there has been a change of circumstances without explaining how those circumstances have suddenly created a lack of funding for a project that had already been budgeted for and had funds secured for it. In any case, the judge said the current appeal was not about establishing whether the ministry has funds or not to carry out the project but whether the Tribunal was justified in cancelling the project.
In his view, the Tribunal fell in error in issuing an order that was not sought by either party as Tawana JV did not seek cancellation of the tender nor China Civil. “In my view, there was nothing that prevented the Tribunal from issuing a substitution order in terms of the provisions of Regulation 16 (c), which allows it to provide other such relief as may be deemed reasonable and necessary. “If the Tribunal was minded to cancel the tender as it did and not issue a substitution order as sought by the parties, it should have afforded the parties an opportunity to address it on the issue of cancellation. Its failure to do so, renders its decision appealable,” he said. Turning back to the substitution order sought by Tawana JV, Justice Kebonang said the decision by the ministry to disqualify the Appellants’ bid and award the tender to China Civil was clearly unlawful. He said the ministry had from the inception of the tender shown unfair preference for the China Civil under the guise of promoting competition. “The above said, a substitution order is only to be granted in exceptional circumstances. The usual course is usually to remit the matter to the administrator for proper consideration.The court will, however, depart from this course where; (a) the end result is in any event a foregone conclusion and it would merely be a waste of time to order the tribunal or functionary to reconsider the matter; (b) the tribunal or functionary has exhibited bias or incompetence to such a degree that it would be unfair to require the applicant to submit to the same jurisdiction again and; (c) the court is in as good a position to make a decision itself,” he said.
He went on to state that in the case in point, the ministry and Attorney General have shown bias, unfair dealing and a predisposition towards China Civil that remitting the tender back to them will serve no purpose. “It would be unfair to ask Tawana JV to resubmit themselves to their jurisdiction. The issue of bias and pre-disposition weigh heavily in favour of a substitution order. The obstacle found in BERGSTAN (PTY) LTD and LANDMARK PROJECTS cases (supra) to the grant of substitutionary relief and relied upon by the ministry and Attorney General in their heads of argument, about courts not having specialist expertise in matters of tender evaluation and needing to defer to those with such expertise, do not exist in this matter,” he said.
Justice Kebonang said with all that is before it, and the expeditious need for the works, the subject of the tender, to be carried out, he said his court is in as good a position to substitute its own award for that of the ministry which his court had respectfully been requested to do it. “The Order of the Tribunal a quo of 24th November 2024, cancelling the tender is hereby set aside only to that extent, and replaced with the following orders: The tender is hereby awarded to the Appellants jointly constituted as Tawana Joint Venture; the Appellants are entitled to contract placement within 21 days from the date of this order, pursuant to Regulation 68 (2) of the Public Procurement Regulations, 2023 and; the Respondents shall, jointly and severally one paying the others to be absolved, pay the costs of this appeal on attorney and own client scale, including costs of employment of (two) counsel,” he said.
