Monday, February 26, 2024

Award of tender not the same as award of contract ÔÇô advocate

In a country that possibly has one of the highest geographic concentrations of tenderpreneurs in the western hemisphere, it is important to get the language and process of tendering right.

In Botswana’s public lexicon, “tender” is the more preferred term to “contract” and the result has been that in some instances, the words are used loosely and interchangeably.

The Public Procurement and Asset Disposal Act has not made the issue easy because its glossary doesn’t define “contract.” The only word that is defined is “tender” and even then, by lexical subsumption in “bid” which is defined as “tender and vice versa or an invitation by a procuring entity for a provider (works, supplies or services); or a disposing entity for interested parties, to submit a competitive offer in relation to a public solicitation for a specific activity which shall include design assignments.” Conversely, the Sheffield City Council in the United Kingdom makes a distinction between the two terms. It defines a tender as “an invitation to trade under the terms on offer” and a contract as “any agreement entered into between the buyer and another party. This could also be on behalf of the buyer and another party. This is for the execution of any work for the supply of goods, works or services.”

The Gaborone High Court is currently seized with a matter in which two companies are fighting over a lucrative office accommodation tender for the Accountant General. Varsha Enterprises, the company that lost, is charging that the one that was successful, Zambezi Motors, did so because procurement rules were broken to accommodate it. The presiding officer, Justice Dr. Zein Kebonang, has himself said that everything about the case smells of corruption.

A ministerial tender committee (MTC) in the Ministry of Finance and Development Planning (under which the Accountant General falls) recommended Zambezi Motors as the preferred bidder. Advocate John Peter, who is representing Varsha, said that the MTC’s action represents awarding the tender ÔÇô not contract which he said is still subject to negotiation. In terms of PPADB process and for big-money jobs, the contract is awarded by the Board. At this stage, the Board has not awarded the tender and Varsha has gone to court to not only prevent that from happening but to also ask the court to set aside the MTC’s decision to award the tender.


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