Bio Medical Engineering Consultation Services, a Gaborone-based medical engineering company, has taken the government to court, seeking over P3 million as compensation for damages.
The case is before Francistown High Court Judge Professor Kholisani Solo.
According to the plaintiff’s declaration document, between December 2007 and February 2008, the Ministry of Health (MoH) and the plaintiff entered into a contract for the supply and installation of Diagnostic Imaging Machines at different government facilities.
The Contract had emanated from a tender that was floated in the newspapers referenced No: PR11/1/208(X111) for the supply of Diagnostic Imaging Machines to different government facilities.
The terms of the contract were that the plaintiff would be awarded a tender amounting to P17 449 017.87. Inclusive in the contract was that a comprehensive service contract of the machines was for five years, amounting to P4 013 447, 87. The contract further stated that the plaintiff would be paid 80 percent of the total amount of the procurement amount to supply and the remaining 20 percent after installation.
The plaintiff supplied all the machines on the 16th of December in 2008 after having been granted an extension to that period by the defendant. The defendant also duly acknowledged the delivery of the machines as supplied by the plaintiff.
The lawyer for the plaintiff, Owen Nsala of Ditlhobolo Attorneys, argues in the declaration document that his client supplied all the machines by the 16th of December 2008 and the defendant only made payments after the supply in between the 19th of March 2010 and 29 of March in 2010 in a period of over 16 months. He further argues on behalf of his client that the other successful bidders who had been given the other portion of the tender were duly paid upon delivery by the defendant having delivered the same around the same time with the plaintiff.
“The said period was unreasonably long and there was no legal justification whatsoever for such conduct on the part of the defendant,” he says in the document.
The lawyer also states in the declaration document that failure to effect payment upon delivery was a breach of contract from the defendant which led to his client to suffer damages.
“The plaintiff had secured financing from Stanbic Bank towards the purchase of the machines supplied and the defendant was aware of the arrangement. The delay in payment led to a Bank interest and charges against the plaintiff from Stanbic Bank which resulted in a judgment obtained by the said Bank against the plaintiff in the sum of P 3 000 508,82,” he says.
“Had the plaintiff been paid well in time, such interest and bank charges could have been avoided and such could have been the Plaintiff’s profit,” he further says in the document.
Nsala also argues that the plaintiff went ahead to re-advertise the same tender in the government gazette (volume XLIX, No 49 dated the 26 of August in 2011) which was also a breach of contract. He says that the defendant unlawfully terminated the contract without due notice and without any hearing having been afforded to his client.
The lawyer is demanding that his client should be paid an amount of P3 000 508.82, 10 percent interest calculated from the day of breach of contract to the date of final payment and the 10 percent collection commission.
Nsala told the Sunday Standard in an interview that they are awaiting a ruling on exception from the High Court as the Attorney General, who is representing the defendant, has raised points in court that the defendant’s case has no merit.
“We are still awaiting a ruling on exception because the defendant has raised points in court that my client’s case has no merit,” he said.
