Bidders ZTK Joint Venture (JV) and Van & Truck Hire (Pty) Ltd have taken issue with being excluded before the financial stage of evaluation for having cancelled on the tender document. They approached the tribunal challenging the decision, only for the tribunal to look deeper into the tender uncovering what seemed like multiple irregularities which the Mogoditshane Thamaga Council Secretary, Nokuthula Mhlanga and her Deputy Kenosi Montsheki could not respond to questions cordially, often giving contradicting explanations.
The dispute is in relation to tender M- TDC/TR/CMS/034/2024- 2025 on the design and construction of 25-kilometre Mogoditshane Internal roads with associated storm water drainage system and solar street lighting was approved under the Economic Recovery Transformation Programme (ERTP) during the 2021/2022 financial year. Evolution Engineers/ Mason Group JV who were second respondents in the case had been identified as the best bidders and were yet to be awarded the tender.
Presenting the case of ZTK JV, Nicholas Zakhem said they were wrongfully disqualified from the tender for cancelling over a material that was listed on the tender document and wrote the alternative material they would use as the listed one was not available in the market. He argued that they were wrongfully removed from participating at the financial stage of the bidding while what they did does not constitute to material variation.
“They stopped our evaluation at the financials. We want to stop the disqualification and finish the evaluation of our tender. Then that is when they can determine who is the best tenderer,” he said.
In response, Council Secretary Mhlanga said instead of indicating next to the material they would need to substitute, ZTK JV cancelled on the tender document. “It was specific on the tender document that you should not alter a tender document. And what they did was violating of the instruction,” she said.
Zakhem also argued that their documents should not have been checked for responsiveness during the opening of the bids for financial evaluation. In responding to this, Mhlanga said they had also realised then that ZTK JV had not fully filled the tender document which immediately made the tender non responsive and called for disqualification. The tribunal would not have none of it as the last of the communications sent to ZTK JV only mentioned the cancellation issue as the sole reason for disqualification.
Things would get interesting as Montsheki said during the financial evaluation that ZTK JV was never evaluated for the financial stage only for the tribunal to lead them to evaluation documents they had that showed that indeed the company had been given a score for their financial bid. Member of the tribunal Manfred Kgari led a very tense session with officers seemingly unprepared for the line of questioning which looked deeper into the tendering process moreover the case brought by
Member of the Tribunal, Manfred took the lead on questioning chairperson of the Procurement Oversight Unit.
Quizzed on where the marks came from if the tender was not evaluated for financials, Montsheki froze for a while. He would then say ”to the best of my knowledge, they were never assessed for financials.”.. before he could complete, Judge President Kenneth Lebotse called on him to relax and answer questions basing on official documents before him.
Montsheki would eventually admit that the company’s financial bid was evaluated.
It also came to the fore that the three companies which were eventually the last three were selected in a manner that raised eyebrows as they were selected by the Oversight unit who would eventually select the preferred bidder without going through proper evaluation process. It was stated that the evaluation team forwarded the bids to the Oversight without having assed on three items that they could not asses. These were litigation history, work load and performance.
Quizzed on how they moved from three bidders to the preferred one, Montsheki had a difficult responding. He said they as the Oversight assessed and recommended, something which brought more questions. Kgari quizzed on which of the three items they assed on to choose the preferred bidder, he said they used only workload.
He was also quizzed if the law allows them to evaluate as an oversight body. He said they adjudicate and that the law does not allow them to evaluate.
It would also come to the fore that while there were 10 bidders recommended for financial evaluation, it was unexplainable why it was only mentioned why three of eight bidders were recommended for award. To this Montsheki said while doing pre adjudication, adjudication and recommend to award which is part of evaluation to test whether they confined to the criteria.
Called on to make their presentation, representatives of Evolution Engineers/ Mason Group JV led by Tuelo Tuelo lamented that the court had veered off addressing the matter that was not brought before the Tribunal by ZTK. They argued that ZTK was rightfully disqualified as they had altered the document by cancelling on it.
The tribunal is set to make a decision on the matter in 21 days with a possibility of calling the parties again if they discover anything requiring clarity.
The long wait
Early December 2024, when answering a question in Parliament, Assistant Minister of Local Government and Traditional Affairs, Ignatius Moswaane said the project was initially transferred to the then Ministry of Transport and Public Works to be implemented through the Development Manager Model on September 25, 2023 but was later withdrawn on March 7, 2024 for implementation by Mogoditshane-Thamaga District Council.
Moswaane said the procurement process of the project was ongoing and it was anticipated that the tender would be awarded before December 20, 2024 with construction scheduled to begin before January 30, 2025. Mogoditshane West legislator, Galenawabo Lekau had asked the minister to state whether any 25-kilometre internal road in Mogoditshane was ever approved, and if so, when construction would commence.
With nothing having been done by the said date, Member of Parliament for Mogoditshane East, Letlhogonolo Barongwang on February 25 asked the minister to update Parliament on the construction of the roads. In response, Moswaane said, the project is at award stage. He however also informed Parliament that there is an appeal that has been lodged with the Public Procurement Tribunal.
