Following their success in halting the award of a tender to an undeserving Chinese contractor, Batswana contractors under the Tawana Joint Venture (JV) have proceeded to challenge a decision by the Public Procurement Tribunal to cancel a lucrative water tender initially awarded at P1.8 billion. Tawana JV who had charged P1.5 billion are irked that they instead of passing the tender to them, the tribunal cancelled it.
Minister of Water and Human Settlement, Onneetse Ramogapi, revealed in Parliament last week in response to a question by Kgalagadi North legislator Reason Lekutlane. Lekutlane wanted an update on the current water crisis in Macheng and the catchment area being villages of Zutshwa, Ngwatle, Monong, Ncaang, Maake, and Hunhukwe, and short-term and long-term solutions. It also came to the fore that P28,938,724.87 has been spent on water bowsing since 2018 and a further P5,911,465.00 is expected to be spent over the next two years.
Whilst he said for the short term, they use bowsing, the long-term solution for the water shortages is to be mitigated by the implementation of the Ncojane- Hukuntsi Water Transfer Scheme that will be supplying water to all Kgalagadi North villages from Ukhwi to Hukuntsi.
“The project was awarded in October 2024. However, the project is on hold due to litigation and insufficient funding. One of the bidders successfully challenged the award during the cooling-off period and the Procurement Tribunal resolved to cancel the tender. The ministry couldn't re-tender the project because of insufficient funds. Further, the ministry received a Statutory Notice from the same bidder who challenged the award, appealing the decision of the Public Procurement Tribunal at the High Court. The ministry will re-start the procurement of the project when funds are available and if there is no restraint from the High Court,” he said.
Last month, the Tribunal moved to set aside the decision by the then Lands and Water Affairs ministry’s Permanent Secretary, Dr Kekgonne Baipoledi, to award a water tender valued at P1.8 billion to China Civil Engineering Construction Corporation (Pty) Ltd and Zhong Gan Engineering and Construction Corporation (Pty) Ltd (collectively referred to as China Civil). As if that weren't enough, the ministry and its leadership will be investigated for corruption as the Tribunal was left shocked at the discovery that many irregularities were found. Sadly for Ghanzi South and Kgalagadi North residents, it means further dry taps.
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 and Kgalagadi North Villages Water Supply Project. This was the sole reason that the JV was disqualified during cost evaluation because the Accounting Officer determined that the JV's proposed price for establishment (P&Gs) exceeds 22.5% of the total tender amount (excluding any amount allowed for contingencies and escalation).
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 didn't result in a passing 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.
The Tribunal determined the financial evaluation criterion is ambiguous. “None of the parties has successfully managed to apply their proposed criterion with a correlating arithmetic outcome. The applicant's ground on the breach of Section 104, as alluded to in paragraphs 55 and 56 of this judgment, is well founded, and I find merit in it. The Tribunal is empowered to order cancellation, and I so order. Additionally, the conduct of the ministry deserves censure. An order for costs is appropriate," reads the judgment.
In the circumstances, the Tribunal made the following orders: The appeal by Tawana JV partly succeeds in that the award decision of the Accounting Officer is hereby set aside. The Tribunal further cancelled the tender and referred the matter to the Directorate on Corruption and Economic Crime for further investigation in terms of Regulation 17 of the Public Procurement (Tribunal) Regulations.
