According to Minister Onneetse Ramogapi, government will not take any action against Baipoledi as it awaits direction from the Directorate on Corruption and Economic Crime (DCEC) to act as the matter has been referred to it by the Procurement Tribunal. The Tribunal last month set aside the decision by Baipoledi, to award a water tender valued at P1.8 billion to China Civil Engineering Construction Corporation (Pty) Ltd and Zhong Gan Engineering & Construction Corporation (Pty) Ltd (collectively referred to as China Civil). The applicants in the matter, G4 Civils (Pty) Ltd, Landmark Projects (Pty) Ltd and Asphalt Botswana (Pty) Ltd collectively referred to as Tawana JV, stood aggrieved by the decision of the then Ministry of Lands and Water Affairs, not to award the JV 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 technical evaluation reports, however, revealed that China Civil should never have progressed to the financial evaluation stage, as they failed to meet the minimum threshold set for progression to the financial evaluation stage, on the criteria that required a minimum pass mark of 60% for each category evaluated. China Civil failed to meet the 60% threshold under category 1 of the technical evaluation criteria, twice. A re-evaluation had been ordered because of some concerns, however, it did not result in a pass mark for China Civil. In both instances, the evaluation team recommended that only Tawana JV proceed to the financial evaluation stage, a recommendation that was rejected by Baipoledi both times, with the support of the Director, of Procurement Oversight. At this stage, the Tribunal, with this revelation, decided to subpoena Baipoledi and the Director- of Procurement Oversight, to explain the patently irregular decisions made to override the clear outcome of the evaluation, of China Civil. The matter was set down for a third hearing, for the ministry to deal with issues emanating from the evaluation reports. Although the Tawana JV case was based on the financial evaluation stage, the Tribunal stated it could not close its eyes to the issues that suggested a pattern of illegality starting at the technical evaluation stage, tinted with the possibility of bias in favour of a bidder, which was not apparent until the evaluation report was produced. “After much prevarication, evasiveness and outright falsehoods, the Accounting Officer (Baipoledi) finally admitted that China Civil ought never to have proceeded to the financial evaluation stage, as they failed the technical evaluation criterion on a very simple arithmetic threshold,” the Tribunal states in their judgment.
The Tribunal led by Judge President Justice Kabelo Lebotse dedicated over 1000 words slamming the Ministry, led by Baipoledi, for what it termed egregious conduct in the execution of their mandate relative to the tender. The Tribunal states that it was evident from the papers filed by the ministry in its defence that it decided to withhold material facts available only to it on account of its position as the procuring entity. They state that the background supplied by the Ministry, though responsive to the specific issues raised by Tawana JV, lacked candour, even if they limited it to the financial evaluation stage that formed the basis of the applicant's complaint. “The Ministry perpetuated a fallacy that in its calculations, it had excluded contingencies and escalations. A cursory peek at the denominator used shows that Pl, 577, 362, 030.33 is the total amount proposed by the Applicants inclusive of escalations and contingencies. This is also an issue that was highlighted at debriefing, and in the Applicants' complaint as well as their appeal. A concession had to be wrestled out of the Ministry at the second hearing of this matter, notwithstanding the strong man team it assembled that included the privilege of an in-house lawyer. This conduct does not reflect well on the procuring entity. Its duty is to be transparent, fair, forthright, impartial, and facilitative of the Tribunal's business,” they state.
The Tribunal further states that it became clear with the filing of the evaluation reports, the subpoena and the appearance of the substantive Accounting Officer (Baipoledi) and Director- director-procurement oversight, that the Ministry was in all likelihood actively working to conceal a scheme to favour China Civil at all costs in the tender. They further state that the gravity of the revelation that the technical evaluation and the re-evaluation reports show that China Civil failed to meet the minimum 60% score per category to progress to financial evaluation, necessitated the attendance of the highest-ranking procurement officials of the procuring entity. They state that Baipoledi had to be represented by Mr Raitoko, as he was unavailable. The procurement oversight office had not been represented at all in the proceedings preceding the subpoena. The Tribunal further stated that Baipoledi was less than candid with the Tribunal in his evidence, although he took oath; and the import thereof, though trite, was spelt out. After traversing the relevant portions of the technical evaluation criteria in the ITT, particularly the provision that stated as follows: "In addition, a Tenderer must score a minimum of 60% in Category Nos. i, ii, iii, v and vi of the marks available for each of those categories, to be considered technically compliant."
The Tribunal was also not amused that the procuring entity has shown a pattern of behaviour where all recommendations by the evaluation committee were rejected, which recommendations favoured Tawana JV, at both the technical and financial stages of the evaluation. In both instances, decisions that were made, favouring China Civil, are riddled with patent legal and/or arithmetic/mathematical errors. The Tribunal concluded that a review of the procurement practices of the ministry is warranted. They also opined that there may be a deliberate scheme to subvert the law, a matter which is the purview of other oversight bodies, not the Tribunal. “This matter is therefore referred to the Directorate on Corruption and Economic Crime (DCEC) for further investigation in terms of Regulation 17 of the Public Procurement (Tribunal) Regulations,” they stated. Despite all the findings by the Tribunal, Minister Ramogapi responding to queries from this publication, said his Ministry does not have the capacity to investigate such matters. “I am aware of the ruling. The Public Procurement Tribunal has referred the matter to DCEC and as such no action can be taken until the Directorate guides on the way forward,” he said.
“My Ministry does not have the capacity to investigate such issues, and just like other government Ministries and Departments, we rely on DCEC because they have the capacity and more so that it's their mandate.” On whether they would probe other tenders from the ministry, Ramogapi said the President has already indicated that there will be a forensic audit and as such it would not be prudent to run two exercises at the same time.
