The Tribunal led by Judge President Justice Kabelo Lebotse has slammed the Ministry, led by Dr Kekgonne Baipoledi as the Permanent Secretary, for what they termed egregious conduct in the execution of their mandate relative to the tender. Further, procurement processes at the Ministry are to be reviewed and the Directorate on Corruption and Economic Crime is set to sniff the ministry. The Tribunal set aside the decision by the Ministry 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). This was after 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 Tribunal states that it was evident from the papers filed by the ministry in its defence that it made a decision 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 applicants' 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 appearance of the substantive Accounting Officer (Baipoledi) and 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 state 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, in order to be considered technically compliant."
