Tuesday, March 21, 2023

BDC on the brink

The beleaguered Botswana Development Corporation faces fresh accusations and potentially more damaging threats of an embarrassing legal injunction emanating from its mishandling of the multi-million Pula innovation hub that BDC is managing on behalf of government.

After the quantity surveying elements of the same project were recently stopped at the High Court, the civil and structural engineering components have also fallen under public scrutiny, raising fears that the project is now on the verge of being suspended or stopped altogether.

At the centre of the controversy is BDC’s Tender Committee, which has in the past been accused of bias and favouritism.

In a hard hitting letter to BDC Managing Director, Maria Nthebolan, the engineering firm, Bergstan, has demanded a debriefing meeting following the award of the engineering components of the contract to Pula Consultants.

Bergstan says it is questionable that Pula Consultants could have won the contract when, according to BDC itself, they [Pula Consultants] were never a part of the original three shortlisted companies.

Speaking through their lawyers, Bergstan says they have since gotten hold of internal BDC documents which reveal manipulation of the tender procedure and its outcome by well placed persons inside the corporation.

“The source is anonymous but the documents, mostly emanating from BDC are manifestly genuine.”
As a result, Bergstan is demanding a debriefing meeting with BDC.

BDC has, however, turned down the Bergstan request for a debriefing meeting, saying its tender processes do not provide for debriefing meetings as requested. BDC goes further to say that the PPAB guidelines as cited by Bergstan, which talk about debriefing meetings, are not binding on itself.

Bergstan lawyers, Collins Chilisa Consultants, are alleging a number of damaging allegations against BDC.

Principally, the Bergstan lawyers say they are alarmed that BDC seems to believe that the parastatal’s tender processes do not allow for debriefing meetings when it is clear from PPADB instruments that debriefings should be given when requested.

To them, such a refusal by BDC amounts to the Corporation saying it’s above the law.

“I can assure you that PPADB, as custodian of public procurement, does not share your view and it remains to be seen whether Government itself believes that one of its parastatals is beyond the reach of its own principal procurement legislation. For your information, there is nothing inconsistent or contradictory in BDC having its own tender rules living side-by-side with section 8 of the Act. One is internal regulation and the other is substantive law. To the extent that the former may be inconsistent with the latter, the former must give way. It happens all the time,” writes Peter Collins of Collins Chilisa Consultants.

Bergstan lawyers have also reminded the BDC Managing Director that since Botswana Innovation hub is, after all, a Botswana Government project there is no way PPADB rules could not apply to it.
“It should also not escape mention that in the very first paragraph of the Terms of Reference for this procurement it is stated that:

“The Botswana Innovation hub is a Government Project under the Ministry of Communications Science and Technology (MCST)… The project is being implemented by BDC …”

They say the award of the contract to Pula Consultants was illegal and a result of manipulation by the BDC Tender Committee.

Bergstan lawyers further point out that by refusing to accent to a debriefing meeting, BDC conduct is deliberately aimed at concealing any revelation of misconduct by the Corporation.
The refusal, they say, is not based upon any legal proposition.

“The BDC Tender Committee awarded the Contract to Pula Consultants, citing citizen preference and noting that while Pula Consultants had recently been awarded another large BDC contract, management should ‘manage’ any resourcing shortfall. It also noted that Bergstan is 100 percent foreign owned which is incorrect ÔÇô it is 15 percent citizen owned), whilst Pula Consultants is 100 percent citizen owned – conveniently ignoring the association with the 100 percent foreign firm WSP as well as the fact that the tender process had evaluated citizen participation in the ranking process.”

In a separate document, which is essentially a dossier of alleged illegalities arising from BDC’s procurement process, the lawyers acting for Bergstan say Pula Consultants only joined the tendering stages “mysteriously” and too late after the process had effectively started.

The three companies shortlisted were Bergstan, Africon Botswana and Integrated Engineers in Association with Karib Namibia.

“When BDC commenced with Stage 2, Pula Consultants ‘supported by’ the foreign firm WSP, had somehow insinuated itself into the shortlist in order to access eligibility to stage 2. This is an illegal process, and in accordance with the BDC Tender Rules and Regulations, section 6.1.2, Pula Consultants had to have been disqualified in the tender evaluation. BDC Tender Rules and Regulations are absolutely specific:

“Tenders received from tenderer(s) not included in the approved list shall be disqualified and therefore any award to such bidders shall be invalid.”

Despite the foregoing, Pula Consultants tender was still evaluated by the Tender Evaluation Panel.
“This is illegal,” says Peter Collins.

The letter, which has also been copied to Solomon Sekwakwa, BDC Chairman and also Permanent Secretary in the Ministry of Finance and Development Planning, adds that “despite Pula Consultants’ illegal inclusion in the evaluation, Bergstan was still the top ranked tender”.

“Importantly, each tenderer’s commitment to citizen participation was included in the ranking and could not be considered at any later stage without raising issues of double jeopardy. Bergstan was recommended by the Evaluation Panel for award. It is indisputable in law that Bergstan was the ‘winner of the competition’ no matter what view one takes of Pula Consultants’ mysterious entry into the shortlist.”

The lawyers say the BDC Tender Committee, however, overturned the recommendation by the Evaluation Panel which had recommended Bergstan, citing citizen preference and misquoting the ‘minimal difference’ in price by some P150 00.

BDC has also been accused of inconsistency in its handling of the Pula Consultants bid vis-à-vis Bergstan and others elsewhere.

“Inconsistently, the BDC Board overturned the Evaluation Panel recommendation for the top ranked Quantity Surveyor, citing in this case that the top ranked tenderer had recently been appointed to the same large BDC contract as in the case of Pula Consultants.”

“…While refusing Bergstan a tender debriefing on grounds that BDC is not obliged in terms of Tender Rules and Regulations, it granted the Quantity Surveyor such a debriefing. BDC appears intent on avoiding having to reveal its procurement process because of the manipulation that took place. If it maintains there some acceptable explanation for these radical departures from its own rules and regulations then BDC should welcome a debriefing session as appropriate forum to do so…”
In the end the lawyers have called on the Ministry of Finance and DCEC to do a thorough investigation.


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