A case in which the Ministry of Basic Education (MOBE) has been dragged before the High Court after selecting a few contractors for a considerable number of tenders is expected to open a can of worms.
It emerges from the papers before the High Court that same companies have been awarded similar tenders at a questionable frequency.
One of the aggrieved contractors, Assot (Pty) Ltd, has already brought an application before the High Court seeking a stay of the decision of the ministry to procure contract services from at least 17 contractors by way of selective tendering.
The contractor also seeks an order interdicting and restraining the Ministry of Basic Education from carrying out any procurement proceedings and any performance and or carriage of works pending determination and finalization of the ongoing appeal (before the Public Procurement and Asset Disposal Board) against the decision of the Ministry on the choice of method of procurement regarding at least 12 tenders.
In his affidavit Assot employee Chenani July states that the Ministry “chose not to make a public domestic bid on reasons unknown to her which excluded” his company and also excluded more than 200 other competent contractors from competing in the said tenders.
“Having lent of the above, sometime around 6th February 2020, his company wrote a letter of complaint addressed to the Ministry. The essence of the complaint was a follows; that the concerned tenders do not qualify for selective bidding as provided under Regulation 58 (1) of PPADB,” said July.
He said Assot was denied its right to compete as given under section 26 of the PPDB Act and that the Ministry should provide justification for choosing selective bidding or withdraw selective bidding process and replace it with domestic public bidding.
“This application is intended to allow our complaint to run its full course, that is to say all process and any associated activities regarding the concerned tenders should be stall pending completion of our appeal with PPADB. I have to add that the moment the applicant does not have knowledge of the status of the said tenders,” said July.
The contractor before approaching the court, had written to the Ministerial Tender Committee objecting to the selective bidding.
“We submit that the acceptable method of procurement in this circumstance is an open bid. We strongly submit that you are in violation of Regulations set by the Public Procurement and Assert Disposal Board. You are aware that there are many domestic entities that can provide the works you seek,” said the contractor.
It added: “You are quite aware that the associated works for the subject projects are cycle maintenance. An open bid would meet the requisite turnaround for implementation of the proposed project. Further we are of the opinion that the need for the said works have been in existence and have been within your knowledge for a reasonable time.”
Assot stated: “If there arise any urgent need to maintain the concerned sites, that would be owing to your poor planning or negligence.”
“It is an abuse of authority and disturbing in that you have selected same companies for the various proposed projects. If truly and in good faith that the proposed works deserve selective bidding, you ought to have selected 1000 companies divided above the entire proposed projects and the same companies have mostly been receiving like works form yourselves at a questionable frequency,” Assot alleged.
Replying, the Ministerial Tender Committee Chairperson Ndondo Koolese said they had no reason to believe that the selective method of procurement approved by the Committee was not applied accordingly.
“Take note that selective method dictates that only selected contractors are invited. Furthermore, PPAD Regulation 77(2) states that among others the selection of a method of procurement and a decision of by the board or its committee all bids and refusal by the procuring entity to an unsolicited offer of and interest to bid shall not be subject to review,” said Koolese.
The Director of the Department of Technical Services in the Ministry of Basic Education David Malejane said selective methods allow for few selected contractors to compete.
“The ministry used the method to address longstanding backlog dating back to when schools were transferred from Board of Governors further to reduce inundated tendering queries form unsuccessful contractors which in the process causing delays to project implementation and delivery,” said Malejane.
