The Court of Appeal (CoA) recently dismissed Jiangsu International’s application for an interdict giving government freewill to enter into a disputed deal to construct a health care facility in Moshupa.
China Jiangsu International construction company’s dismissed application that intended to stop government from signing a construction contract, ends Jiangsu’s claim over the tender it argued was rightfully theirs as they met all the requirements.
Justice Singh Walia told the company that there was nothing urgent about stopping government from providing vital health facilities to its people.
Jiangsu was seeking an interim interdict against the government and another Chinese company, Zhengtai Group Botswana, from entering into any agreement for the construction of such facility while the matter for a review of the tender was still pending before the court.
According to the company’s court documents, Zhengtai was awarded the tender by the Public Procurement and Asset Disposal Board (PPADB) and the Ministry of Infrastructure and Housing Development despite being placed second.
The messy battle between the parties is reportedly a result of the company not being awarded a tender worth P418,932,846.86 for the construction of a proposed new primary hospital at Moshupa despite being the lowest in price, technically making the company the most complainant bidder.
When dismissing the application, Walia said there were no exceptional circumstances permitting the hearing of the appeal as a matter of urgency. He explained that the review application regarding the tender before the High Court could take a long time to be resolved.
“Such delays can cause incalculable harm, not only in inevitable cost overruns but importantly in the denial of the vital health facilities to the population of the affected area,” he said.
Justice Walia also explained that it was in the public’s interest that the important tender for the benefit of the disadvantaged sections of the population be concluded as soon as possible especially that it has already had a two-year delay.
Further, he pointed out that its potential delay for up to a year or more while the cancellation of an earlier tender was contested would further disadvantage those that most need it, the public.
“It is open to the company to contest the tender and if it wins there will have been need for the appeal.
If it loses and can establish any alleged improprieties it may be able to review that award or to claim compensation arising from the earlier cancellation, if it is able to establish legal liability and to prove its damages,” he said.
The judge told the company that there are remedies available and that since it has already chosen the review route they will no doubt chart its future course following the outcome of the application.
Meanwhile, the fallout between the parties is reportedly bigger than just the disputed tender as government considers Jiangsu a national security threat.
Further reports suggest that the state has been advised to cease all dealings with the company hence the awarding of the tender to another Chinese company despite being the next compliant bidder after Jiangsu.